Chapter 10: The right to justice
Te tika ki te whai i te tika o te ture
All are equal before the law and are entitled without any discrimination to equal
protection of the law.
(Universal Declaration of Human Rights, Article 7)
1. Introduction — Timatatanga
What is the right to justice?
The right to justice comes from the belief that society should be based on the
rule of law. The rule of law requires that:
- human rights must be protected by law
- disputes about rights must be capable of being submitted to a competent, impartial
and independent authority for adjudication
- authorities, when considering disputes, will apply procedures that will ensure
full equality and fairness to all the parties
- disputes will be determined in accordance with clear, specific and pre-existing
laws which are known and openly proclaimed (Seighart,
1983, p.18).
The rule of law is a fundamental building block for a fully functioning democratic
system and for the full and effective protection of human rights. The rule of
law is also fundamental to economic security, as it ensures that both the public
and private sectors have a stable and reliable legal system for resolving commercial
and other disputes, as well as clearly established rules by which business can
be conducted.
As the Chief Justice of Canada has said:
Since the time of the Roman empire, the law has been the instrument of choice
to bring order from chaos and peace from strife, and thus achieve peace and prosperity … Our
challenge for the future is to ensure that wherever people interact in the world
they have clear and predictable legal frameworks, fair and efficient ways to
resolve their disputes, and laws capable of dealing with the post-modern world
(McLachlin, 2000).
Equality and fairness are not just about having laws and processes that appear
to treat everyone equally or in the same way (sometimes called ‘formal
equality’). Equality and fairness are also about what happens in practice
in everyday life (sometimes called ‘substantive equality’). The goal
of the rule of law and the right to justice is fair outcomes for everyone.
2. The international context — Ki ngā kaupapa o te ao
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The right to justice consists of a cluster of human rights that are set out in
the International Covenant on Civil and Political Rights (ICCPR) and general
law and include that:
- all people are equal before the law and are entitled to the equal protection
of the law (UDHR, Article 7)
- everyone is entitled to a fair and public hearing by an independent and impartial
tribunal or court (UDHR, Article 10; ICCPR, Articles 2(3)(b), 14(2) & (3)(b))
- decision-makers, including judges, should abide by the principles
of natural justice
- everyone has the right to an effective remedy for any violations of his or her
human rights (ICCPR, Article 2(3)(a))
- everyone charged with a criminal offence has the right to be presumed innocent
until proved guilty according to law in a public trial, and the right to legal
counsel (ICCPR, Article 14).
These standards overlap with the principles of the rule of law. Laws must
incorporate and provide processes for challenging violations of these standards.
New Zealand courts have recognised the need to develop the common law consistently
with international human rights treaties. In the past the courts took the approach
that the State’s international obligations had no part in domestic law
unless incorporated by statute. Today the courts say that this approach is
too rigid. The courts also consider that to ignore international obligations
excludes a vital source of helpful guidance.
3. The New Zealand context — Ki ngā kaupapa o Aotearoa
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The principles and standards relating to the right to justice apply in both
the civil and criminal justice contexts. However, this chapter focuses on the
right to justice in a non-criminal context and assesses the status of the right
to justice against four key indicators:
- clear laws that incorporate human rights standards
- an independent and impartial legal system
- legal processes that ensure equality and fairness
- laws that are known and openly made.
(a) Clear laws that incorporate human rights standards
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Chapter 6: Democratic rights outlines the elements of the constitution and
the role of the Executive, Parliament and the judiciary in providing checks
and balances on each other. The Executive, Parliament and the judiciary also
have distinct roles in providing the sources of law. There are five main sources
of law in New Zealand:
- laws made by Parliament: also known as statutes or Acts of Parliament
- laws made by the executive under the delegated authority of Parliament: this
includes regulations and rules by central government
- laws made by local authorities: this includes by-laws
- some United Kingdom statutes made by the British Parliament up until 1947 following
the Statute of Westminster Adoption Act 1947
- laws made by the courts, also known as ‘the common law’.
New Zealand laws are generally of a high quality and incorporate human rights
standards in a variety of ways. One way is in the New Zealand Bill of Rights
Act 1990 (BoRA), which affirms New Zealand’s commitment to the justice
principles in the ICCPR. The BoRA sets out the right to the observance of the
principles of natural justice (the right to a fair process), the right to judicial
review of public decisions, and the right to bring civil proceedings against
the Government. These rights apply widely and are a strong protection of the
right to justice in New Zealand.
New Zealand also has robust systems for making clear laws. Some agencies having
special responsibilities, for example, the Legislation Advisory Committee,
Parliamentary Counsel Office, the Ombudsman, the Attorney-General (in respect
to consistency with of the BoRA), and Parliamentary Select Committees. The
Regulations Review Select Committee ensures that regulations are made lawfully.
This committee can also draw to the attention of Parliament any regulations
that ‘trespass unduly on personal rights and liberties’ (House
of Representatives Standing Order 378).
There are other ways for making sure New Zealand makes clear laws that incorporate
human rights standards. The Cabinet Office Manual requires human rights assessments
of proposals for new laws or new policies. Government departments must act
in a way that meets human rights standards. The Ministry of Justice (along
with the Solicitor-General and the Crown Law Office) has a particular role
in checking draft legislation of other government departments for compliance
with the BoRA.
The Ministry is working to mainstream human rights into the wider policy sector.
The purpose is to aid consistency across Government, reduce the resources required
for vetting legislation and policy for human rights compliance, reduce litigation
risk for the Crown, and ensure that policies and legislation promote human
rights more effectively (Ministry
of Justice, 2002a). The Solicitor-General
is the chief legal advisor to the Government and has a range of statutory functions
and duties, including most of the statutory and ex-officio duties of the Attorney-General.
A key element in the oversight of law-making is the active participation of
civil society: people making submissions, challenging laws, and making complaints
when laws are too complex or difficult to understand.
(b) Independent and impartial legal system
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New Zealand has an independent and impartial legal system that is corruption
free. Judicial independence from political interference by the executive is
protected by the Judicature Act 1908 and the Constitution Act 1986. Most judges
are appointed by the Governor-General on the advice of the Attorney-General.
In giving this advice, the Attorney-General takes advice from the Solicitor-General
and the Chief Justice or Chief Judge of the court to which the judge is to
be appointed. Measures such as permanent tenure, judicial immunity, and the
setting of salaries by an independent body all protect judicial independence.
There is a general requirement for persons who hear and decide cases to be
impartial. Bias (including a perception of bias) is a reason for overturning
judicial decisions.
New Zealand has a well-developed legal system with a range of courts and tribunals.
The final appeal court is the Supreme Court, below which are the Court of Appeal,
the High Court and the District Courts. New Zealand has a well-developed jury
system used in criminal and some civil cases. Procedures for appeal are generally
well defined.
There are a number of specialist courts, including the Family Court, the Youth
Court, the Environment Court, the Employment Court and the Maori Land Court.
There are over 100 specialist tribunals, authorities, boards, committees or
related bodies to deal with some types of disputes, largely between individuals,
on matters such as human rights, employment disputes, censorship, welfare and
benefits, taxation, occupational licensing and discipline, scientific matters,
and activity licensing (for example, for the sale of liquor). The Waitangi
Tribunal is a permanent commission of inquiry established by the Treaty of
Waitangi Act 1975. The Tribunal’s main function is to inquire into claims
by Maori relating to the Treaty of Waitangi and to report its non-binding findings
and recommendations to the Government. New Zealand also has specialist officers
in the private sector, such as the Banking Ombudsman.
Tribunals and courts must consider human rights when interpreting laws. The
courts do not have power to strike down Acts of Parliament that are inconsistent
with human rights standards, but they can make declarations of inconsistency. The
courts can go further with regulations and rule them invalid in some circumstances.
(c) Legal processes that ensure equality and fairness
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Key elements that ensure equal and fair access to justice include:
- Private providers of legal services: lawyers must be qualified and are regulated
by the New Zealand Law Society (which provides information and support to lawyers,
information to the general public and education programmes in schools).
- Government-funded legal aid: this is available for civil and criminal matters
through the Legal Services Agency, which administers legal aid, can fund community
law centres, funds some law-related education and some research. A government-funded
Public Defender Scheme is being tested in Auckland.
- Community legal services: such as community law centres, citizens’ advice
bureaux, iwi-based services, victim support services, and specialist services
such as those for refugees and migrants. Some of these are partly funded by
Government.
- The Ministry of Justice: which administers the courts and some tribunals.
(d) Laws that are known and openly made
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Openness and public scrutiny of law-making is secured in a number of ways.
The Official Information Act 1982, for example, allows members of the public
to seek official documents from government departments and some other public
bodies. Legislation is published and is available in bookshops, at public libraries,
and freely on the Internet. A variety of information is available from Government
and other bodies about legal requirements across a range of areas. Increasingly,
these publications are available in a range of different languages.
