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«WAIKATO LAW REVIEW TAUMAURI VOLUME 19, ISSUE 2, 2011 An Account of the Making of the Human Rights Amendment Act 2001 Margaret Wilson Indigenous ...»

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VOLUME 19, ISSUE 2, 2011

An Account of the Making of the Human Rights Amendment Act 2001

Margaret Wilson

Indigenous Peoples: Negotiating Constitutional Reconciliation and Legitimacy In Canada

Paul LAH Chartrand

Indigenous Rights – Hollow Rights?

Valmaine Toki

Rights Denied: Orang Asli and Rights to Participate in Decision-making in Peninsular Malaysia

Yogeswaran Subramaniam

The Punitive Turn in Post-Colonial Sentencing and the Judicial Will to Civilise Dr Thalia Anthony The Rangatahi Court Matiu Dickson – “Three Strikes” Sentencing: Another Blow for Maori Wayne Rumbles – Frozen Rights? The Right to Develop Maori Treaty and Aboriginal Rights Dr Robert Joseph What Is The Place Of Corrective Justice In Criminal Justice?

Simon Connell Charitable Trusts and Political Activity: Time for a Change?

Juliet Chevalier-Watts Reform of the Civil Justice System: The New Meaning of Justice and the Mitigation of Adversarial Litigation Culture Les Arthur Legal Positivism in the Pre-Constitutional Era of Late Nineteenth-Century Iran Sadeq Bigdeli Missing the Point? Law, Functionalism and Legal Education in New Zealand W John Hopkins A Thorn in the Flesh that Cannot Fester: Habermas, the Duluth Model, Domestic Violence Programmes Philip Rossiter WAIKATO LAW REVIEW TAUMAURI VOLUME 19, Issue 2, 2011 An Account of the Making of the Human Rights Amendment Act 2001 1 Margaret Wilson Indigenous Peoples: Negotiating Constitutional Reconciliation and Legitimacy In Canada 14 Paul LAH Chartrand Indigenous Rights – Hollow Rights? 29 Valmaine Toki Rights Denied: Orang Asli and Rights to Participate in Decision-making in Peninsular Malaysia 44 Yogeswaran Subramaniam The Punitive Turn in Post-Colonial Sentencing and the Judicial Will to Civilise

–  –  –

Chief Justice, The Honourable Dame Sian Elias (honorary member), Chief Justice of New Zealand.

Professor John Borrows, JD, PhD, FRSC, Robina Professor of Law, Policy and Society, University of Minnesota Law School.

Professor Penelope Pether, Professor of Law, School of Law, Villanova University.

Associate Professor T Brettel Dawson, Department of Law, Carleton University, Academic Director, National Judicial Institute (Canada).

Gerald Bailey, QSO, LLB (Cant), Hon D (Waikato), Consultant Evans Bailey, Lawyers, former Chancellor of University of Waikato and member of the Council of Legal Education.

Sir David Baragwanath, Honorary Professor, University of Waikato, Judge of the Appeals Chamber of the Special Tribunal for Lebanon, The Hague.

Professor John Farrar, LLB (Hons) (London), LLM (London), LLD (London), PhD (Bristol), Emeritus Professor of Law, Bond University, Professor of Corporate Governance, University of Auckland.

Deputy Chief Judge Caren Fox, Mäori Land Court.

Judge Stephanie Milroy, Mäori Land Court.

Dr Joan Metge, Law and Society, with particular interests in law’s role in an ethnically diverse society.

Professor Margaret Bedggood, QSO, LLB (Otago), MA (NZ and London), former Chief Human Rights Commissioner.

The Honourable Justice Paul Heath, Judge of the High Court of New Zealand.

The Honourable Sir Eddie Durie, KNZM, first Mäori appointed as a Justice of the High Court of New Zealand, and leading legal expert on the Treaty of Waitangi.

Professor Alex Frame, LLB (Auck) LLM, LLD (Well), former Chair in Te Piringa – Faculty of Law, University of Waikato and Director of Te Matahauariki Research Institute.

Professor Paul Hunt, Department of Law, University of Essex, member of the Human Rights Centre, University of Essex and Adjunct Professor, University of Waikato.

The Honorable Justice Joseph Williams, Judge of the High Court of New Zealand.

Judge Peter Spiller, Honorary Professor of Law, University of Waikato.

Associate Professor Morné Olivier, School of Law, University of the Witwatersrand.

Professor Michael Hahn, Chair of European Law, University of Lausanne, Honorary Professor of Law, Te Piringa – Faculty of Law, University of Waikato.

The Waikato Law Review is published annually by Te Piringa – Faculty of Law at The University of Waikato.

Subscription to the Review costs $40 (domestic) and $45 (international) per year; and advertising

space is available at a cost of $200 for a full page or $100 for a half page. Back numbers are available. Communications should be addressed to:

The Editor Waikato Law Review Te Piringa – Faculty of Law The University of Waikato Private Bag 3105 Hamilton 3240 New Zealand

North American readers should obtain subscriptions direct from the North American agents:

Wm W Gault & Sons Inc 3011 Gulf Drive Holmes Beach Florida 34217-2199 USA This issue may be cited as (2011) 19:2 Wai L Rev.

All rights reserved. No part of this publication may be produced or transmitted in any form or by any means electronic or mechanical, including photocopying, recording or any retrieval system, without permission from the editor.

–  –  –

I am pleased to present the second issue of the Waikato Law Review for 2011. This special issue draws together a number of articles which were developed from papers presented at the Justice in the Round: Perspectives from Custom and Culture, Rights and Dispute Resolution Conference held at Te Piringa – Faculty of Law in April 2011.

The conference theme was derived, in part, from aspects of the three founding goals of Te Piringa – Faculty of Law. These goals are the understanding of law in its contexts; developing bicultural legal understandings; and fostering professionalism in our students. In reflecting the Faculty’s commitment to biculturalism, the conference was intended to foster achieving this goal in its own right, as well as reflecting New Zealand’s unique identity in an increasingly multi-cultural society, with a bi-cultural foundation. In affirming the Faculty’s commitment to law in context, the conference gathered a group of people already “working for justice”, to consider “justice” and conceptions of justice in the institutional, ideological, and cultural contexts in which they are currently situated, and to consider how both the ideas and their realisation in fact, might be improved or redesigned. Our goal was to further a dialogue about what constitutes “justice in the round”.1 While at first glance the Table of Contents may seem an eclectic mix, each paper presents its perspective on justice, reflecting on the past, present and possible futures.

The first two papers are derived from the plenary sessions of the conference. Margaret Wilson’s paper “Mainstreaming Human Rights in Public Policy: An Account of the Role of Human Rights Amendment Act 2001” offers a unique insight into the recent legislative history and it

relationship to policy. The second plenary paper is from Paul Chartrand, “Indigenous Peoples:

Negotiating Constitutional Reconciliation and Legitimacy in Canada”, which argues that the political action of the Indigenous peoples of Canada are important for law and political processes out of which constitutional and legal norms emerge.

The remaining papers draw on the themes of rights, policy and reform illustrated in the plenary papers albeit through different lenses. These papers explore the rights of indigenous people in Australia, Malaysia, Canada, the United States and here in Aotearoa. Policy is explored in a number of contexts including: charitable trusts, legal education, and domestic violence. Commentary on legal reforms explores both the criminal and civil arena from nineteenth-century Iran to twenty first century Aotearoa/New Zealand. It was also pleasing that a number of the papers are from post-graduate students as well as experienced academics and practitioners. I am sure that in this special issue there will be something of interest for all readers and hope you enjoy reading it.

I would like to express my thanks to all the contributors and reviewers without which this special edition would not be possible, especially in light of some of the tight deadlines. My thanks must also go to Gay Morgan and Robert Joseph for editorial assistance and support. I would also like to thank Diane Lowther for her timely and excellent copy editing, Amanda Colmer from A2Z Design for layout support, and Janine Pickering for her administrative support, institutional knowledge and keen eye.

Wayne Rumbles Guest Editor

–  –  –

1. introduction

In this paper I want to address the relationship between policy and law through a discussion of the 2001 Amendment to the New Zealand Human Rights Act 1993. Discussions of justice often focus on analysis of court decisions or legislation. Legal policy is not often analysed or the process by which legal policy is formed and incorporated into the law. This paper is an attempt to try and fill that gap through a description of the process to enact the 2001 Human Rights Amendment Act.

The narrative is based on my experience so it is acknowledged at the outset that others involved in the process may hold different views.

I shall argue that the way in which human rights have been incorporated into New Zealand’s legal system reflects the underlying constitutional relationship between the Parliament and the courts. This constitutional relationship is still founded on the notion of parliamentary sovereignty and while the courts are developing a role as the guardians of individual human rights, Parliament still retains the right to ‘make the law’. New Zealand’s lack of a written constitution and its flexible pragmatic approach to constitutional matters has meant that an iterative approach between the courts and Parliament has been evolving over the past 20 years. While both institutions have acknowledged the importance of adherence to human rights standards, their role in the application and enforcement of those standards has developed within the context of New Zealand’s constitutional arrangements.

The reason I concentrate on the significance of 2001 Amendment in this lecture is because it demonstrates the role of Parliament in enacting a human rights statutory framework and also the role of the legal institutions that enforce human rights. It also clarifies the relationship between the Human Rights Act and the New Zealand Bill of Rights Act 1990 (NZBORA) in terms of the status of both Acts and the remedies available.

At the outset it is argued that New Zealand has a commitment to embedding human rights within its constitutional arrangements. New Zealand also may be described as a good international citizen because since the formation of the United Nations it has supported its various human rights initiatives. It has ratified the main human rights international treaties. It was not until the 1970s however that New Zealand started to incorporate its international commitments into domestic legislation. The role of human rights in New Zealand constitutional arrangements reflects its history and culture, including the long accepted commitment to parliamentary sovereignty as a fundamental tenet of those arrangements. This adherence to parliamentary sovereignty has been challenged recently, however, by the inclusion of human rights standards within the constitutional arrangements. This challenge has come through the enactment of a human rights statutory framework and * Professor, Te Piringa – Faculty of Law, The University of Waikato.

Waikato Law Review 2 Vol 19 – Issue 2 the interpretation of that framework by the courts. This development has raised directly the issue of whether the courts can declare invalid or void legislation that does not conform to the human rights standards. 1 The debate as to who makes the law is an important but large topic, so this paper will focus on the significance of the 2001 Amendment’s contribution to that debate.2 To understand the role of the 2001 Amendment in seeking to clarify the relationship between Parliament and the courts in the enforcement of human rights, it is necessary to briefly review the statutory context within which human rights have developed in New Zealand.

The first domestic recognition of international human rights commitments in New Zealand came with the Race Relations Act 1971, the Long Title of which recited: “An Act to affirm and promote racial equality in New Zealand and to implement the International Convention on the Elimination of All Forms of Racial Discrimination.”

This was followed by the Human Rights Commission Act 1977, the Long Title of which read:

“An Act to establish a Human Rights Commission and to promote the advancement of human rights in New Zealand in general in accordance with the United Nations International Covenants on Human Rights.” The Human Rights Commission Act then was primarily the fulfilment of the government’s international obligations to protect citizens from discrimination perpetrated by fellow citizens. It was written with the private sector in mind and sought to regulate the public sector only when it was acting as an ordinary person. It therefore applied to the government when acting as a private person, for example, as an employer, a landlord or supplier of goods and services that were analogous to those supplied by a private person.

The Human Rights Commission Act then was designed as anti-discrimination legislation.

Originally it prohibited only discrimination on the grounds of sex, marital status, religious and ethical belief and contained grounds for the justification of discriminatory treatment in right and proper circumstances. It was not a Bill of Rights Act nor intended to be such an Act. The provisions of the Act in 1977 reflected the political pressure for the legislation. The women’s movement had campaigned for legal protection and a remedy against discrimination since the 1975

Select Committee Report on the Role of Women in New Zealand Society, in their recommendation that:3

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