You are here: Home Publications Publications A-Z g Guidelines on the New Zealand Bill of Rights Act 1990 PART IV Remedies under the Bill of Rights Act

PART IV Remedies under the Bill of Rights Act

PART IV Remedies under the Bill of Rights Act

The New Zealand Bill of Rights Act contains no express remedies for infringement of its protected rights, in spite of what was proposed in the White Paper. The UN Human Rights Committee has expressed ongoing concern about the need to ensure availability of remedies for infringement of the Bill of Rights Act. At New Zealand's last Periodic Report in July 2002 the Committee again urged the New Zealand government to take appropriate steps to ensure remedies are available in accordance with Article 2 of the ICCPR.

What every policy analyst needs to know

  • The Bill of Rights Act has no express remedy provisions, but remedies are available for a breach of the Act
  • The Courts have developed and considered a variety of remedies, as appropriate based on the individual circumstances of each case, including excluding 'tainted' evidence, issuing a stay of proceedings, reducing an offender's sentence, and monetary compensation
  • The Human Rights Act 1993 provides for a publicly funded complaints process for complaints about alleged breaches of section 19 (freedom from discrimination) of the Bill of Rights Act
  • There are individual complaint mechanisms provided in some international instruments to which New Zealand is a party, including core UN human rights treaties
  • Liability for a Bill of Rights Act breach does not require a finding of fault or bad faith on the part of the Crown - occurrence of the breach is sufficient

Further Discussion

Although the Bill of Rights Act has no remedy provisions, this does not mean remedies are not available for a breach of the Act. The New Zealand Courts have developed various remedies. The Human Rights Act 1993 provides for a publicly funded complaints process for complaints about alleged breaches of section 19 (freedom from discrimination) of the Bill of Rights Act. There are also individual complaint mechanisms provided in some international instruments to which New Zealand is a party, including core UN human rights treaties.

Liability for a Bill of Rights Act breach does not require a finding of fault or bad faith on the part of the Crown - occurrence of the breach is sufficient. However, fault or bad faith may be relevant in determining the appropriate remedy.

The Development of Judicial Remedies

Although the Bill of Rights Act has no remedy provisions, the courts have developed various remedies for infringement of the rights and freedoms identified in the Act. In Simpson v Attorney-General (Baigent's case) [970] the Court of Appeal held that effective and appropriate remedies are available for breach of the Bill of Rights Act. The courts were seen as having a positive duty to provide remedies. As Cooke P explained in Baigent [971]:

we would fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed.

In establishing the availability of judicial remedies, the Court of Appeal placed considerable weight on New Zealand's obligations under the international human rights covenants, in particular the ICCPR that is affirmed in the long title to the Bill of Rights Act.

The freedom of the courts to grant remedies is significant. The courts are able to consider a wide range of remedies - possibly beyond the traditional forms - provided they can be seen as effective and appropriate in the circumstances [972].

What about statutory immunity?

Importantly, the Court of Appeal in Baigent characterised the remedy under the Bill of Rights Act as a public law remedy:

[it is] an independent cause of action against the Crown, and not one which arises from vicarious liability. It is the Crown, as the legal embodiment of the state which is bound by the International Covenant to ensure an effective remedy for the violation of fundamental rights [973].

The Crown's liability is direct rather than vicarious. The Crown may be held directly liable despite the statutory immunity of the individual officers or employees concerned and statutory restrictions on Crown liability.

This attribution of direct liability meant that the Crown's protection from vicarious liability under section 6(5) of the Crown Proceedings Act 1950 did not apply.

What types of remedies are available?

Because of their judicial nature, the remedies available as a consequence of a breach of the Bill of Rights Act are constantly evolving. A breach of a particular right does not automatically give rise to a corresponding remedy. Instead, the courts will determine the most effective and appropriate remedy based on the individual circumstances of each case. When formulating a remedy the court will consider:

  • The purpose and nature of the right infringed;
  • The nature and seriousness of the breach [974];
  • The consequences of the breach [975]; and
  • what is necessary for the vindication of the right, rather than the punishment of the wrong-doer or compensation to the person affected [976].

The Bill of Rights Act is frequently invoked in criminal cases and many of the remedies available reflect this.

The range of remedies the courts have awarded or considered include:

  • Excluding 'tainted' evidence from a proceeding;
  • Issuing a stay of proceedings [977];
  • Awarding monetary compensation;
  • Remitting a decision to the original decision-maker for reconsideration;
  • Reducing the sentence of an offender;
  • Issuing an injunction requiring positive action, or an order for return of property [978];
  • Declaring that an action of a public body is inconsistent with the Bill of Rights Act;
  • Making a formal declaration of inconsistency between the Bill of Rights Act and a particular statute.

Monetary Compensation

Following overseas authorities [979], the Court of Appeal in Baigent established compensation as a discretionary remedy for breaches of the Bill of Rights Act where:

  • There is no existing cause of action; or
  • The existing cause of action and remedy is inadequate [980].

An action for Bill of Rights Act compensation will not preclude a concurrent claim for damages based on common law or statute. The courts will, however, avoid 'double recovery' [981].

What types of actions can be compensated for?

The majority of compensation claims under the Bill of Rights Act involve rights concerning the deprivation of liberty or invasion of privacy. However, the Act offers scope for compensation to be awarded in actions not previously recognised in common law, such as non-observance of natural justice [982] or preventing freedom of movement [983].

Compensation has been awarded for a wide range loss including:

  • Physical damage [984];
  • intangible harm such as distress and injured feelings [985];
  • Loss of liberty [986];
  • Economic loss (including both past and future earnings) [987];
  • Loss of opportunity [988];
  • Legal costs [989];
  • In addition, interest may be awarded [990].

It should be noted that the courts have been cautious to avoid extravagant awards of compensation [991]. This cautious approach is consistent with overseas jurisdictions [992].

What sorts of considerations may be relevant when awarding compensation?

It appears that awards for Bill of Rights compensation will be approached on the same basis as damages in an action in common law [993]. Relevant considerations about whether, and how much, compensation should be awarded may include:

  • The value which the right protects and the seriousness of the breach [994];
  • The consequences of the breach [995];
  • The need to emphasise the importance of the right involved and to deter breaches [996];
  • Whether the plaintiff has exercised due diligence in pursuing his or her claim [997];
  • The standing of the plaintiff in the community [998], or the character of the plaintiff [999];
  • Whether the breach was committed in bad faith or was deliberate [1000];
  • Contributory negligence and mitigation of losses [1001];

Are punitive damages available?

The question as to whether exemplary damages are available for a breach of the Bill of Rights Act remains open. Recent academic comment and case law suggest that exemplary damages may be available in appropriate cases [1002]:

...the vindication of rights can be achieved without recourse to the concept of punitive damages - although such damages may at times be called for over and above the damages necessary to vindicate the right [1003].

Overseas courts have been willing to consider punitive damages for violations of constitutional rights in appropriate circumstances [1004].

Who is liable for compensation?

It remains unclear who is primarily liable for a Bill of Rights Act compensation claim. In Baigent, Justice McKay [1005] stated:

[w]here a right is infringed by a branch of Government or a public functionary, the remedy under the Act must be against the Crown.

Does this mean that the Crown is liable for all infringements of the Bill of Rights Act? The Law Commission suggests that the correct approach is that the Crown is primarily liable for infringements by its servants and agents (ie. those referred to in section 3(a)). Liability for infringements by other public bodies (ie those referred to in section 3(b)) should lie with the person or body that has legal control over them [1006]. This interpretation seems to be consistent with later case law [1007].

Referring decision back to original decision-maker

If a decision made by an authority or tribunal is found to breach rights contained in the Bill of Rights Act, the decision can be remitted to the original decision-maker for reconsideration. The court will often direct the decision-maker to reconsider the decision with specific attention to be paid to a particular right [1008].

A recent decision of the Court of Appeal also raises the possibility of the courts quashing a defective decision, rather than remitting it to the original decision-maker [1009].

Exclusion of evidence

The exclusion of evidence is often the most effective remedy where an infringement of a right relating to search, arrest and detention (sections 21 to 24) results in the obtaining of incriminating evidence. The effect of this remedy is that the 'tainted' evidence is excluded from consideration in the decision-making. The Court of Appeal has recently modified the application of this remedy.

The previous approach - a presumption in favour of exclusion

Where evidence had been obtained in a breach of the Bill of Rights Act it was presumed to be excluded unless the courts were satisfied that there was an overriding reason to admit the evidence. The presumption in favour of exclusion could therefore be displaced for a 'good cause'. In practice the presumption led to the almost automatic exclusion of evidence once a breach had been established [1010] - often immunising a criminal against prosecution.

The new 'balancing exercise'

In Shaheed the Court of Appeal introduced a balancing exercise to assist the courts in determining whether excluding evidence is a truly proportionate response to the particular breach. Appropriate and significant weight must first be given to the nature of the right and the breach, but there is no longer a presumption that evidence will be excluded. Public interest considerations that may be relevant to the balancing exercise include:

  • The value which the right protects and the seriousness of the breach;
  • Whether the breach has been committed deliberately or recklessly;
  • Whether there were other avenues available that would not have resulted in a breach;
  • The nature and quality of the disputed evidence;
  • The centrality of the evidence to the prosecution's case; or
  • The availability of an alternative remedy or remedies.

The new balancing exercise is in line with the approach of other commonwealth jurisdictions, including the Privy Council [1011] and the House of Lords [1012].

Declarations of Inconsistency - the development of a new judicial remedy?

The Court of Appeal has hinted at a willingness to make formal declarations where legislation is found to be inconsistent with the Bill of Rights Act. Such declarations would be in addition to a similar remedy available through the Human Rights Tribunal in respect of section 19 of the Bill of Rights Act (freedom from discrimination).

In R v Poumako, Justice Thomas made a clear statement about inconsistency with the Bill of Rights Act and indicated he would have issued a declaration of inconsistency, asserting:

Where there is no other remedy, a declaration may provide the only effective remedy [1013]

The rest of the Court did not adopt his proposal. There has been no opportunity since Poumako for the Court of Appeal to clarify where it stands on this issue. The Court has, however, stated previously that the courts do have the power and, on occasion, the duty to indicate where a statute is inconsistent with the Bill of Rights [1014].

The ability of the courts to formally declare a piece of legislation as incompatible with the Bill of Rights Act raises an important constitutional issue: that of the relationship between parliament and judiciary. Section 4 prevents the courts from overriding legislation that is inconsistent with the Bill of Rights Act. But by making a formal declaration of inconsistency, the courts could exercise significant political pressure for law reform [1015].

A comparative example: The United Kingdom's declaration of incompatibility

Section 4 of the Human Rights Act 1998 gives the courts in the United Kingdom the power to make a declaration of incompatibility where it is impossible to construe legislation compatibly with the European Human Rights Convention. The incompatible legislation remains in force unless amended by parliament in order to preserve parliamentary sovereignty.

As at April 2003, 11 declarations of incompatibility had been made in accordance with section 4. [1016] Four of these were overturned on appeal. The incompatibility identified in another four of them was addressed by legislative amendment.

The House of Lords' position appears to be a cautious one:

[a declaration of incompatibility] is a measure of last resort. It must be avoided unless it is plainly impossible to do so. [1017]

Human Rights Review Tribunal Remedies for Breach of Section 19 Freedom from discrimination

An amendment to the Human Rights Act 1993 [1018] means that there is now a publicly funded complaints process available for complaints about alleged breaches of section 19 of the Bill of Rights Act (freedom from discrimination). This new complaints process does not affect the ability to pursue other judicial remedies through the courts for a breach of section 19 - it is an additional avenue for relief.

Part 1A of the Human Rights Act provides that an activity by a person or body performing a public function, power or duty will generally be in breach of the Human Rights Act if it is inconsistent with section 19 and cannot be justified under section 5 of the Bill of Rights Act.

The Human Rights Commission has power to initiate an inquiry into any matter where it appears that there may be an infringement of human rights. If the dispute cannot be resolved through mediation and conciliation, a binding decision can be sought from and enforced by the Human Rights Review Tribunal.

Where the Human Rights Review Tribunal finds an activity is an unjustified infringement of section 19 of the Bill of Rights Act it may award the following remedies:

  • A declaration that a breach of the Human Rights Act has occurred;
  • An order restraining the breach;
  • Compensation against the person or agency who committed the breach;
  • An order that a person or agency act in a particular way to redress any loss or damage suffered; and
  • A declaration that a piece of legislation is inconsistent with the Bill of Rights Act (and, therefore, a breach of Part 1A of the Human Rights Act). Where a declaration of inconsistency is made, the Government is required to prepare a report to Parliament setting out what it intends to do in response to the declaration.

For more information on the dispute resolution processes and the role of the Human Rights Commission, contact the Human Rights Commission.

Note that in March 2002, the Ministry of Justice published The Non-discrimination Standards for Government and the Public Sector: Guidelines on how to apply the standards and who is covered. You should refer to the Non-discrimination Guidelines for a detailed description of how Part 1A of the Human Rights Act is applied.

International Scrutiny

Reports to United Nations Committees

As part of its international obligations, and as a consequence of previous decisions to ratify various international human rights treaties, the government is required to periodically report to a number of Committees on matters relating to this country's compliance with these human rights standards. [1019]

In the period leading up to the designated reporting date, the relevant Committee is apprised of specific issues relating to New Zealand's compliance with the international treaty in question - frequently by non-governmental organisations. Based on this information, the Committee will prepare a number of questions in advance of the receipt of the report and will also ask questions at the presentation of the report.

You should therefore be aware that, if your agency has developed policies or practices that appear to be inconsistent with these standards, those practices will be subject to international scrutiny. You will also be asked to prepare a response to those questions.

Human Rights Treaties: Individual Complaint Mechanisms

The individual complaint mechanisms of the core UN human rights treaties which New Zealand is currently a party to are the following:

  • Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) - New Zealand recognises the competence of the Human Rights Committee to receive and consider communications from individuals who claim to be victims of violation by New Zealand of any of the rights in the ICCPR (including the rights in the Second Optional Protocol)
  • Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) - New Zealand recognises the competence of the Committee on the Elimination of Discrimination Against Women to receive and consider communications from individuals or groups of individuals who claim to be victims of violation by New Zealand of any of the rights in the CEDAW
  • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) - NZ has made a declaration that it recognises the competence of the Committee Against Torture to receive and consider communications from individuals who claim to be victims of a violation by New Zealand of the provisions of the Convention In addition, there is a limited right of individuals to bring a complaint under Article 26 of the International Labour Organisation (ILO) Constitution asserting that an ILO member state is not satisfactorily securing the effective implementation of an ILO Convention which it has ratified. In terms of individuals bringing such complaints, they must be a delegate of the International Labour Conference. Delegates include an employers' representative and a worker's representative.

The effect of ratification is that individuals in New Zealand can bring 'communications' to the individual Committees alleging that their rights under the international conventions have been breached by the state. Although an individual can only lodge a communication if they have exhausted all their domestic remedies, individuals and groups have lodged several communications. Although there is no legal obligation on the Government to act on an adverse decision made by the Committee, the decision of the Committee is taken very seriously, because it amounts to a conclusion that New Zealand is in breach of its international obligations. Again, practices and policies that are inconsistent with the Conventions will be subject to international scrutiny. Decisions by the Committee will also be posted on the UN web-site.

The effect of lodging a communication with the Human Rights Committee, for example, is that it enables the individual to argue their case under the ICCPR and not the provisions of the Bill of Rights Act. As you may have noted the provisions of the Bill of Rights Act and ICCPR differ in a number of respects and it is possible that the Human Rights Committee arrives at a different conclusion.

As Rishworth points out, where there are broad similarities between the provisions of the ICCPR and the Bill of Rights Act, the domestic Courts will have regard to the decisions of the Human Rights Committee.

Key Cases

Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385; Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667; R v Grayson and Taylor [1997] 1 NZLR 399; R v Shaheed [2002] 2 NZLR 377; Martin v Tauranga District Court [1995] 1 NZLR 491; Dunlea v Attorney-General [2000] 3 NZLR 136; Upton v Green (No 2) (1996) 3 HRNZ 179; Kerr v Attorney-General (1996) 4 HRNZ 270; Manga v Attorney-General [2002] 2 NZLR 65; Dunlea v Attorney-General [2000] 3 NZLR 136; J v Attorney-General (1995) 2 HRNZ 311; PF Sugrue Ltd v Attorney-General (Chisholm J, Christchurch, CP 19-96, May 3, 2002); Attorney-General v P F Sugrue Ltd (2000) 26/8/03, CA 106/02; R v Poumako [2000] 2 NZLR 695; Daniels v Chief Executive of the Department of Work and Income (HC Auckland, 8 April 2002, Harrison J, M1558/PL01) 12; Whithair v A-G [1996] 2 NZLR 45; Mohammed v The State [1999] 2 AC 111.

History of the situation

The White Paper

The White Paper included a draft remedies clause, as follows, that was omitted from the final bill:

25. Enforcement of guaranteed rights and freedoms Anyone whose rights or freedoms as guaranteed by this Bill of Rights have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

The wording of this clause comes from section 24(1) of the Canadian Charter of Rights and Freedoms. The White Paper envisaged that such a clause would enable the Courts to provide traditional remedies, while also allowing for the development of additional remedies where appropriate.

The Select Committee Reports on the Bill of Rights Act Bill

The Select Committee's final recommendation as to the form of a Bill of Rights for New Zealand did not contain clause 25 or an equivalent. The reason for the omission is unclear. One suggestion is that the Select Committee saw clause 25 as being associated with the White Paper's concept of a Bill of Rights being supreme law. In abandoning the concept of supreme law, the Select Committee also abandoned the idea of an express remedy clause [1020].

Remedies under the international treaties

Unlike the Bill of Rights Act, international human rights treaties provide for express remedies. For example:

  1. The International Covenant on Civil and Political Rights ("ICCPR")
    Article 2(3) of the ICCPR requires New Zealand to:

(a) ensure any person whose Covenant rights are violated has an effective remedy;
(b) develop the possibilities of judicial remedy; and
(c) ensure any person claiming a remedy has his or her right enforced by competent authorities.

  1. Universal Declaration of Human Rights states:
    Article 8 of the Declaration states that everyone whose fundamental rights has been violated has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Footnotes:

  1. [1994] 3 NZLR 667
  2. [1994] 3 NZLR 667, 676.
  3. Huscroft, G and Rishworth, P, Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and The Human Rights Act 1993 (Wellington: Brookers, 1995) 413.
  4. Per McKay J in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, 718.
  5. R v Grayson and Taylor [1997] 1 NZLR 399.
  6. Baigents Case [1994] 3 NZLR 667, 718.
  7. R v Shaheed [2002] 2 NZLR 377, para 25.
  8. Martin v Tauranga District Court [1995] 1 NZLR 491 for undue delay under s 25(b) of the Bill of Rights Act.
  9. Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667,676 per Cooke P.
  10. The Court expressly followed Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385.
  11. Dunlea v Attorney-General [2000] 3 NZLR 136.
  12. Per Cooke P in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, 678.
  13. Upton v Green (No 2) (1996) 3 HRNZ 179.
  14. Kerr v Attorney-General (1996) 4 HRNZ 270.
  15. Per Cooke P in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, 678.
  16. Per Cooke P in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, 678.
  17. Manga v Attorney-General [2002] 2 NZLR 65 and Dunlea v Attorney-General [2000] 3 NZLR 136.
  18. J v Attorney-General (1995) 2 HRNZ 311
  19. Upton v Green (No 2) (1996) 3 HRNZ 179. In this case the plaintiff was not given the opportunity to make submissions in relation to his sentence, and therefore the opportunity to persuade the judge to impose a lesser term.
  20. Binstead v Northern Region Domestic Violence Approval Panel (HC Auckland, 8 April 2002, Harrison J, M1558/PL01).
  21. PF Sugrue Ltd v Attorney-General (Chisholm J, Christchurch, CP 19-96, May 3, 2002).
  22. [1994] 3 NZLR 667, 678.
  23. For analysis of overseas jurisdictions see, Law Commission, Crown Liability and Judicial Immunity: A Response to Baigent's Case and Harvey v Derrick (Wellington: NZLC, 1997) 35.
  24. Dunlea v Attorney-General [2000] 3 NZLR 136.
  25. Per McKay J in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, 718.
  26. Per McKay J in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, 718.
  27. Per Cooke P in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, 678.
  28. Attorney-General v P F Sugrue Ltd (2000) 26/8/03, CA 106/02. NB. The Limitation Act 1950 does not expressly provide a limitation period in respect of BORA compensation claim.
  29. Kerr v Attorney-General (1996) 4 HRNZ 270. Police were found to have acted in breach of the plaintiff's rights to freedom of movement (section 18). A relevant consideration in the assessment of damages was persons the plaintiff associated with.
  30. In Manga v Attorney-General [2002] 2 NZLR 65 the fact that the plaintiff had been in prison previously was a consideration in setting the award of compensation.
  31. Daniels v Chief Executive of the Department of Work and Income (HC Auckland, 8 April 2002, Harrison J, M1558/PL01) 12. Justice Harrison stated that the fact that the breach was not made in bad faith or deliberate told against awarding compensation. However, it is not necessary to allege bad faith in an action for compensation. See Kerr v Attorney-General (1996) 4 HRNZ 270 and Whitair v Attorney-General (1996) 2 HRNZ 289.
  32. No case has yet expressly determined whether contributory negligence or mitigation are relevant in New Zealand.
  33. See Butler, A "Compensation for Violations of the New Zealand Bill of Rights Act 1990: Where Are We At?" (2002) 6 Human Rights Law & Practice 134. Whithair v A-G [1996] 2 NZLR 45.
  34. Dunlea v Attorney-General [2000] 3 NZLR 136, para 78.
  35. For example, Canada in R v F (G) (1991) 280 APR 11.
  36. Simpson v Attorney-General (Baigent's Case [1994] 3 NZLR 667, 718.
  37. Law Commission, Crown Liability and Judicial Immunity: A Response to Baigent's Case and Harvey v Derrick (Wellington: NZLC, 1997) 35.
  38. See Innes v Wong (No 2) (1996) 4 HRNZ 247.
  39. For example in Newspaper Publishers Association of New Zealand v Family Court [1999] 2 NZLR 344 the matter was resubmitted to the Family Court to consider the ambit of the suppression order to take into account the freedom of expression under section 14. In Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 the Court of Appeal made an order directing the Film and Literature Board of Review to reconsider the classification of certain publications in accordance section 14.
  40. Living Word Distributors Ltd v Human Rights Action Group [2000] 3 NZLR 570. In his dissenting judgment, Justice Thomas found that the Film and Literature Board of Review had exceeded its decision-making jurisdiction.
  41. R v Shaheed [2002] 2 NZLR 377, para 140.
  42. Mohammed v The State [1999] 2 AC 111.
  43. Attorney-General's Reference (No 3 of 1999) [2001] 2 AC 91.
  44. [2000] 2 NZLR 695, para 95.
  45. Moonen v Film & literature Board of Review [2000] 2 NZLR 9.
  46. Butler, A "Judicial Indications of Inconsistency - A New Weapon in the Bill of Rights Armoury?" (2000) New Zealand Law Review 43, 59-60.
  47. Professor Brice Dickson (Northern Ireland Human Rights Commission), The Human Rights Act in Northern Ireland after Two-and-a-half Years, a paper prepared for the Belfast Solicitors' Association, 10 April 2003. For example, in International Transport Roth GmbH v Home Secretary [2002] 3 WLR 344, the statutory penalty scheme for carriers of illegal immigrants (a blanket imposition of a substantial fixed penalty without regard to the blameworthiness of the carrier) was found to be incompatible with the right to a fair hearing in the determination of a criminal charge. The Nationality, Immigration and Asylum Act 2002 corrects the incompatibility.
  48. Per Lord Steyn in R v A [2001] UKHL 25.
  49. Human Rights Amendment Act 2001.
  50. New Zealand's reporting obligations are found in:
    Article 40 of the ICCPR
    Article 16 of the ICESCR
    Article 9 of the CERD
    Article 17 of the CEDAW
    Article 44 of the UNCROC
    Article 19 of the CAT
  51. Per Hardie-Boys J in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, 699.