New Zealand Bill of Rights (Private Property Rights) Amendment Bill - Submission to Justice and Electoral Committee [2005] NZHRCSub 2 (8 August 2005)

Last Updated: 26 March 2015

Human Rights Commission

Submission on the

New Zealand Bill of Rights

(Private Property Rights)

Amendment Bill

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Justice and Electoral Committee

08 August 2005

The Commission wishes to make an oral submission

Contact person:
Diana Pickard
Senior Policy Analyst
Human Rights Commission
Direct dial 04 496 9774

CONTENTS PAGE

1. Introduction 4


2. Submission summary 4


3. The process for change: Legislation of constitutional status 5


4. The nature of property rights: International, regional and 6
domestic
Protections for property rights in international human
rights instruments 7
Protections for property rights in regional human
rights instruments 7
Protections for property rights in the constitutional and human
rights legislation of other jurisdictions 9


5. Summarising the elements of property rights 9


6. Issues arising with property rights 10
How has ‘property’ generally been defined? 10
What constitutes a ‘deprivation’ of property and when is a
deprivation ‘arbitrary’? 10
When is a deprivation of property in the public interest? 11
What is the nature of compensation? 11


7. Property rights in New Zealand legislation: Past and Present 12
During the development of the New Zealand Bill of Rights Bill 12
In the existing New Zealand Bill of Rights Act 1990 13
In other New Zealand legislation 15


8. Is the current protection for property rights in New Zealand
sufficient? 15


9. Is the form of property rights as drafted in this Member’s Bill
appropriate for inclusion in the Bill of Rights Act? 16
Is compensation appropriate for controls over the use and
enjoyment of property? 16
Is arbitrary deprivation banned in the Bill or simply compensated? 17
No reference in the Bill to deprivations only being made in
accordance with the law and in the public interest 17

CONTENTS continued PAGE


9 Continued
Is compensation ensured for total deprivation of property? 17

Using the wording of Article 17 UDHR 18
Is it appropriate to include explicit provision for compensation

in the Bill of Rights Act? 18


10. Changes to the Bill recommended by the Commission 19


Appendix 1: Protections for property rights in international and
regional human rights instruments, and in the constitutional and
human rights legislation of other jurisdictions 20

1. Introduction

1.1 The Human Rights Commission welcomes this opportunity to make a submission on the New Zealand Bill of Rights (Private Property Rights) Amendment Bill - a Member’s Bill in the name of Gordon Copeland MP.

1.2 The purpose of the Bill is to amend the New Zealand Bill of Rights Act 1990 to include the property rights.^[1] The Bill proposes to achieve this purpose through the addition of the following two sections to the Bill of Rights Act:

Private property rights

11A Right to own property

Everyone has the right to own property, whether alone or in association with others.

11B Right not to be arbitrarily deprived of property

No person is to be deprived of the use or enjoyment of that person’s property without just compensation.


1.3 The Commission supports the New Zealand Bill of Rights (Private Property Rights) Amendment Bill subject to some specific amendments.


2. Submission summary

2.1 The Commission’s submission addresses:

• The nature of property rights: International, regional and domestic;
• Summarising the elements of property rights;
• Issues arising with property rights;
• Property rights in New Zealand legislation: Past and present;
• Whether the current legislative protection for property rights in New Zealand is sufficient; and
• Whether the form of property rights as drafted in this Member’s Bill are appropriate for inclusion in the Bill of Rights Act.

2.2 The Commission recommends:

➢ That property rights be incorporated in the New Zealand Bill of Rights Act, along the following lines:

The right to property

1. Everyone has the right to own property alone as well as in association with others.

2. No person shall be arbitrarily deprived of property.

3. No person shall be deprived of property except in accordance with the law, in the public interest, and with just and equitable compensation.

4. Everyone has the right to the use and peaceful enjoyment of their property. The law may subordinate such use and enjoyment to the interest of society.



3. The process for change: Legislation of constitutional status

3.1 As an initial point for the Committee’s consideration, the Commission wishes to raise the constitutional status of New Zealand’s human rights legislation:

That the Bill of Rights is already part of New Zealand’s constitutional canon is undeniable. It is identified as such by commentators,^[2] by the courts^[3], and in official publications of the New Zealand government.^[4]


3.2 This status is important because it denotes that any amendment to the Bill of Rights Act is best through a broad participatory process, as befits constitutional change. In the Commission’s submission to the Constitutional Arrangements Committee in April 2005, we stated that:

The Commission sees the Committee’s current call for submissions, on New Zealand’s existing constitutional arrangements, as a first step in a New Zealand discussion – a conversation with the nation – on current constitutional arrangements and their necessary development. As indicated above, that discussion can cover the merits of an entrenched constitutional document for New Zealand, [and] the benefits that accrue when it includes the range of civil, political, economic, social and cultural rights.
...

Further, should New Zealand discussions on entrenchment of constitutional arrangements reach a Parliamentary level, they must involve an iterative process. Consideration of constitutional changes such as these requires clear cross-party support, informed by public participation. Select Committee processes are useful in this regard, and the lengthy, consultative and participatory process followed in enacting the Bill of Rights Act may provide a model.
...
Adopting a human rights approach to constitutional development ensures:

• the linkage of decision-making at every level to the agreed human rights norms at the international level as set out in the various human rights covenants and treaties;
• a balancing of rights, where necessary, to maximise respect for all rights and right-holders;
• an emphasis on the participation of individuals and groups in decision-making;
• the introduction of accountability for actions and decisions, so that individuals and groups can complain about decisions that affect them adversely;
• non-discrimination among individuals is being sought, through equal enjoyment of rights and obligations by all individuals; and
• an empowerment of individuals and groups by allowing them to use rights as leverage for action and legitimise their voice in decision-making.^[5]

This approach is vital in constitutional matters. The importance of employing a participatory process for constitutional examination and development - as befits our democracy - cannot be too strongly stressed.^[6]



4. The nature of property rights: International, regional and domestic

4.1 The right to property, and not to be arbitrarily deprived of it, are regarded as human rights. They are thought to have been derived from the Magna Carta.^[7] Today, the right to ownership and enjoyment of private property is of central importance to the common law, and has come to be seen as an important guarantee of individual liberty. It has given rise to much political debate, and an enormous body of case law over two centuries.^[8]

4.2 The focus of this submission is on the protection of property rights in domestic legislation, regional conventions and charters and in international instruments, as opposed to common law.




Protections for property rights in international human rights instruments

4.3 Property rights form Article 17 of the Universal Declaration of Human Rights (UDHR), which states that:

Everyone has the right to own property alone as well as in association with others. No-one shall be arbitrarily deprived of his property.

4.4 Property rights were not included in the two subsequent international human rights covenants^[9], due to considerable disagreement at the time on the concept of ‘property’, the restrictions to which the right should be subjected, and the formulation of the right to compensation.^[10] However:

while the right to property, as such, is not protected under the covenants, a confiscation of private property or the failure by a state to pay compensation for such confiscation could still entail a breach of ICCPR [Article] 26 if the relevant act or omission was based on discriminatory grounds.^[11]


4.5 In addition, United Nations human rights instruments that focus on non-discrimination – such as the International Convention on the Elimination of all Forms of Racial Discrimination, and the Convention on the Elimination of all Forms of Discrimination Against Women - do explicitly recognise property rights. The relevant articles from those Conventions are set out in full in Appendix 1 to this submission.

4.6 International Labour Organisation conventions also cover several aspects of property rights, with regard to for example, “trade union property and various aspects relevant to the property rights of workers”.^[12] In addition, intellectual property rights are protected in a number of conventions adopted by the World Intellectual Property Organisation.^[13]


Protections for property rights in regional human rights instruments

4.7 Protections for property rights are repeated in regional instruments. For example, the First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms provides as follows:


Article 1 Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.


4.8 The right to peaceful enjoyment of possessions is, in substance, a guarantee of the right to property.^[14] The European Court of Human Rights has held that this right to property comprises three distinct (but connected) rules:

• First rule: The principle of the peaceful enjoyment of property;
• Second rule: The principle that the deprivation of possession of property must be in the public interest and subject to the conditions provided for by law and by the general principles of international law;
• Third rule: the principle that States are entitled to control the use of property in accordance with the general interest and to secure the payment of taxes or other contributions or penalties.^[15]

4.9 In general, interference with property rights, carried out in the public interest, must strike a ‘fair balance’. This is achieved by satisfying the following two conditions:

• The interference with the property must have a legitimate aim; and
• There must be a reasonable relationship of proportionality between the means employed and the above pursued aim.^[16]

4.10 This is a proportionality test is akin to that provided by section 5 of the Bill of Rights Act (as interpreted by New Zealand courts^[17]). While this First Protocol to the European Convention does not include specific reference to compensation, the European Court has said that “the taking of property in the public interest without compensation is treated as justifiable only in exceptional circumstances”.^[18]

4.11 The African Charter on Human and Peoples' Rights, and the American Convention on Human Rights also contain property rights. The former provides a right to property, while the latter provides a right to the use and enjoyment of property and compensation for deprival of property. Both allow interference with property rights in the public interest and in accordance with law. The relevant articles from these regional instruments are set out in full in Appendix 1 to this submission.


Protections for property rights in the constitutional and human rights legislation of other jurisdictions

4.12 Similar protections for property rights exist in other jurisdictions. For example, the Fifth Amendment to the United States of America’s Constitution puts it this way:

Amendment V - Trial and Punishment, Compensation for Takings

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense [sic] to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation [emphasis added].


4.13 Appendix 1 also contains legislative examples from South Africa, Australia and India. The first of these is the most comprehensive, including protection against arbitrary deprivation of property, and provision for just and equitable compensation/redress and guidance on how that should be calculated.


5. Summarising the elements of property rights

5.1 Property rights are human rights, protected by a range of international, and regional human rights instruments, and by domestic human rights and constitutional statutes. When provided in legislation, property rights encompass one or more of the following elements:

• the right to own property alone as well as in association with others;
• the right not to be arbitrarily deprived of property;
• the right not to be deprived of property except in the public interest, in accordance with the law, and with just and equitable compensation;
• the right to the use and peaceful enjoyment of property;
• requirements that limits on the use and peaceful enjoyment of property are justifiable (that is, the limitation being for a legitimate aim, and the measures used proportionate to that aim).

6. Issues arising with property rights

6.1 Issues commonly arising in relation to property rights include:

• What does ‘property’ include? Is it land and goods, or does it, for example, extend to information, money, contracts, and goodwill?
• What State actions constitute ‘deprivation’ of property, and when is it ‘arbitrary’?
• When is a deprivation of property in the public interest?
• What is the nature of compensation? Is it always monetary compensation?^[19]

6.2 Courts have provided substantive answers to the majority of these issues.


How has ‘property’ generally been defined?

6.3 ‘Property’ has generally been given a wide and liberal definition. It is not limited to the ownership of physical goods, and has been held to include, for example, the right of management of a company, and a debt by a banker to his customer.^[20] In insolvency legislation, property will include, for example, money, goods, lands and interests.


What constitutes a ‘deprivation’ of property and when is a deprivation arbitrary?

6.4 In a July 2004 submission, the Commission provided some guidance on this issue, as follows:

What is a deprivation of property?

Deprivation of property “means divesting, keeping out of enjoyment, or causing loss (for example, by taking away, destruction, or by causing extinguishment) of a right.”^[21]

When is a deprivation of property arbitrary?

It is important to note that property can be taken in the public interest. ...

Restrictions can also be placed over the use of property. ... The right not to be arbitrarily deprived of property does not preclude restrictions on the use of land, so long as they serve objectives of general public interest, and as long as restrictions do not constitute a disproportionate and intolerable interference with the rights of the owner.

New Zealand courts have considered the meaning of ‘arbitrary’ in the analogous situation of arrest and detention – involving a deprivation of liberty, rather than a deprivation of property. Such an action is arbitrary if:

it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.^[22]

Arbitrary actions incorporate elements of inappropriateness, injustice, and lack of predictability. The Canadian Supreme Court has held that “a discretion is arbitrary if there are no criteria, express or implied, which govern its existence”.^[23]



When is a deprivation of property in the public interest?

6.5 In New Zealand, the Public Works Act provides an example of a situation where the public interest may be thought to outweigh an individual’s property rights. As a rule, a deprivation of property is in the public interest when:

• it is for a legitimate purpose / in pursuance of legitimate social policies;
• it is appropriate to the achievement of that purpose; and
• by virtue of compensation reasonably related to the value of the property, it strikes a fair balance between the demands of the general interest and the requirements of the individuals fundamental rights.^[24]

What is the nature of compensation?

6.6 The issue of compensation is probably the most disputed aspect of the right to property.^[25] The Commission, again in its July 2004 submission, noted the following principles:

The principles which underlie the right of a person not to be deprived of property without compensation are:

First, that some public interest is necessary to justify the taking of private property for the benefit of the state and, secondly, that when the public interest does so require, the loss should not fall upon the individual whose property is taken but should be borne by the public as a whole.^[26] [emphasis added]


6.7 In the context of property, given that compensation means recompense for loss, compensation is often monetary. The quantum of compensation is generally ascertained by determining the value of the property taken. The South African legislation in particular provides guidance on how compensation may be calculated.^[27]


7. Property rights in New Zealand legislation: Past and present

7.1 There is a large body of common law in New Zealand which addresses property. However the issues raised by this Bill concern the inclusion of property rights in legislation, and in particular, in New Zealand’s human rights legislation. The following material therefore has a legislative focus.


During the development of the New Zealand Bill of Rights Bill

7.2 Proposals to include some form of property rights in New Zealand’s Bill of Rights Act are not new. In 1988, the Final Report of the Justice and Law Reform Committee On a White Paper on a Bill of Rights for New Zealand stated that:

The submissions on the White Paper suggested that the following social and economic rights should be included in the bill: property; protection of family and/or parental rights; health; education; adequate standard of living; protection for the environment; and work.
...

The submissions and an examination of the UDHR [the Universal Declaration on Human Rights] and ICES [the International Covenant on Economic, Social and Cultural Rights] suggest that that following social and economic rights should be included in the bill.
...

• The right to own property and the right not to be deprived of private property for public use without just compensation.

[citing Article 17 of the UDHR, Fifth Amendment to the US Constitution, and section 51 (xxxi) of the Australian Constitution Act.]^[28]


7.3 The Parliamentary Counsel Office subsequently drafted a 1989 version of the New Zealand Bill of Rights Bill with the following clause 30:

Right to own property

Every person has the right to own property, and the right not to have that person’s property taken, for public use, without just compensation.


7.4 The two elements in the Bill currently before the Committee were therefore present in that early Bill of Rights Bill – namely, the right to own property, and the right not to be deprived of property without compensation. However, this property clause (and the other clauses with economic and social rights) were opposed by the Government of the day, and did not survive in the draft Bill of Rights Bill though to its introduction into the House. The then Prime Minister, Sir Geoffrey Palmer stated in the Bill’s introductory speech on 10 October 1989, that:

The select committee recommended the inclusion of some social and economic rights as principles to aim at. Such rights would not have been enforceable, and it was decided not to include any of them in the Bill. Bills of Rights are traditionally about putting restraints on the powers of the State. Hence, they tend to focus on procedural rather than substantive rights. Social and economic rights are in a different category. That does not mean that those rights are of lesser importance, but, rather, that they should be protected in a different way.^[29]

In the existing New Zealand Bill of Rights Act 1990

7.5 While explicit protection for property rights was not included in the Bill of Rights Act, there has been subsequent debate about whether property rights are indirectly protected by other the provisions of the Act. That debate has centred on section 21, which provides that:

Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search and seizure, whether of the person, property, or correspondence or otherwise.

7.6 The Court of Appeal held in 1997 that the intention of section 21 is:

...to ensure that governmental power is not exercised unreasonably... The guarantee under section 21 to be free from unreasonable search and seizure reflects an amalgam of values. A search of premises is an invasion of property rights and an intrusion on privacy. It may also involve a restraint on individual liberty and an affront to dignity.^[30]

7.7 However, despite the reference in section 21 to "seizure...of property", the general consensus has been that it does not confer a right to property, or protection from the State seizing property. The High Court in Westco Lagan v Attorney-General stated that:

The portion of the Act in which s 21 occurs goes on to deal with liberty of the person, rights of persons arrested or detained, rights of persons charged, minimum standards of criminal procedure, retroactive penalties and double jeopardy, and right to justice. These ... all focus plainly on prosecution and judicial process. It would be distinctly odd if the legislature had plonked a provision intended to deal in a general way with seizure of property without compensation into such a matrix.^[31]


7.8 While the courts are clear that the primary focus of section 21 is on preventing the unreasonable intrusion of the State into citizens’ privacy, they will nonetheless consider how enforcement agencies treat property seized during the exercise of law enforcement functions.

Because a seizure extends beyond the initial taking possession of property, the state must assume a responsibility for the safe and proper storage of the thing seized. A seizure may be unreasonable if, for example, the property is damaged by enforcement officers.^[32]

7.9 Consequently, while section 21 of the Bill of Rights Act may protect property rights to a small degree during a search and seizure - usually in the law enforcement context - it falls well short of providing the protection for property envisaged by the proposals in the Bill of Rights (Private Property Rights) Amendment Bill.





In other New Zealand legislation

7.10 While New Zealand’s domestic human rights legislation is silent in relation to explicit property rights, other New Zealand legislation supports the domestic existence of such rights. This can be seen in the following examples:

• The Crimes Act 1961 proscribes property offences such as theft;
• The scheme of the Public Works Act 1981, where compensation can be negotiated for land taken for essential works;
• The Land Transfer Act 1952, and the indefeasibility of title provided by section 62 (and other sections) of that Act; and
• The terms of the Treaty of Waitangi settlements negotiated by the Office and Minister of Treaty Settlements.

8. Is the current protection for property rights in New Zealand sufficient?

8.1 Having considered the protections for property rights provided both in New Zealand and elsewhere, the question is whether New Zealand’s current, rather piecemeal, approach provides sufficient protection for those rights.

8.2 Property rights cover matters which, in human rights terms, encompass both civil and political rights (e.g. non-discrimination, and fair processes), and economic and social rights (e.g. the ability of individuals “to enjoy a certain minimum of property needed for living a life in dignity, including social security and social assistance”^[33]).

8.3 The Commission’s preference is to protect human rights by inclusion in New Zealand’s human rights legislation. This view has remained steady since 1989, where in relation to the New Zealand Bill of Rights Bill we stated that:

Our preference would have been for an .. Act which also included economic, social and cultural rights.

...

The Commission recommends, however, that a widening of [the Bill’s] provisions as outlined above be considered at some future time.^[34]


8.4 The Commission’s recent submission to the Constitutional Arrangements Committee is also apposite. In that submission^[35] we stated that:

Although economic, social and cultural rights are addressed in government legislation, and in many government strategies, policies and programmes, they do not generally have the same level of legislative protection as civil and political rights.

The UN Committee on Economic Social and Cultural Rights comments that:

Direct incorporation avoids problems that might arise in the translation of treaty obligations into national law, and provides a basis for the direct invocation of the Covenant rights by individuals in national courts. For these reasons, the Committee strongly encourages the formal adoption or incorporation of the Covenant in national law.^[36]


8.5 While, during the development of the New Zealand Bill of Rights Act, economic, social and cultural rights (including the right to property) were considered non-justiciable, some 15 years later that view is now difficult to sustain. This is ably demonstrated by the jurisprudence of the Constitutional Court of South Africa.

8.6 Consequently, the Commission supports the inclusion of property rights in the New Zealand Bill of Rights Act. However, the form these rights might appropriately take in that Act is now addressed.


9. Is the form of property rights as drafted in this Member’s Bill appropriate for inclusion in the Bill of Rights Act?

9.1 The Commission has specifically considered whether the property rights as drafted in this Member’s Bill are appropriate for inclusion on the Bill of Rights Act, or whether the drafting might be improved. We have looked to the examples provided by the international and regional instruments, and the legislation of other jurisdictions.

9.2 As a result, we have the following concerns, which arise from the current form of the Bill and from the proposed section 11B in particular.


Is compensation appropriate for controls over the use and enjoyment of property?

9.3 It is important to note that many controls placed on the use (and, to a lesser extent, on the peaceful enjoyment) of property are everyday occurrences – for example, through the zoning and rating of land. As such, it is not appropriate that compensation be mandatory, as set out in the proposed section 11B. To take an extreme but illustrative example, under section 11B the owner of land who is denied permission to use their property to build a nuclear weapons factory will be entitled to compensation. Although it is possible that the phrase in section 11B of “just compensation” may limit the sum payable in such instances to a token, we consider it preferable to avoid a requirement for compensation for legitimate controls over the use and peaceful enjoyment of property. Instead, the Bill should be explicit that the use and peaceful enjoyment of property may be controlled and limited in the public interest.^[37]

9.4 The Bill of Rights Act itself provides adequate protection where such restrictions exist over the use and peaceful enjoyment of property. This is because section 5 of the Bill of Rights Act requires that those restrictions – those limits placed on a right – be reasonable and justifiable.^[38] This is akin to the proportionality test applied in many other jurisdictions, in order to strike a fair balance between the interests of the State and the rights of the individual.

9.5 Compensation should be retained in the Bill solely for deprivations of property.


Is arbitrary deprivation banned in the Bill or simply compensated?

9.6 It is possible that in its current form section 11B will give rise to unnecessary legal argument to determine whether the section bans arbitrary deprivations of property, or just allows them to be compensated. This is because the proposed section 11B includes the term ‘arbitrary’ in the section heading, but does not include the term in the text of the section itself. The Interpretation Act 1999 (section 5) makes it clear that the text is a primary source of a statute’s meaning, whilst “indications” such as section headings can be “considered” when interpreting a statute.


No reference in the Bill to deprivations only being made in accordance with the law and in the public interest

9.7 The above problem of interpretation is exacerbated by the lack in the proposed section 11B of an explicit requirement that deprivations of property are carried out in accordance with the law. In addition, there is no express reference to property deprivations only being made in the public interest. Consequently, in our view, the Bill lacks important protections in relation to State action.


Is compensation ensured for total deprivation of property?

9.8 It is not entirely clear whether the proposed section 11B ensures compensation for total deprivation of property, or only directs that compensation is required where limits are placed on use and enjoyment.


Using the wording of Article 17 UDHR

9.9 The Commission prefers that, where appropriate and possible, domestic statutes that implement international human rights obligations do so in the words of the international texts. The Law Commission has also recognised the benefits of the incorporation of treaties in domestic law, recommending that, as far as practicable:

Legislation implementing treaties or other international instruments gives direct effect to the texts, that is, uses the original wording of the treaties.^[39]


9.10 The Human Rights Commission therefore favours a minor amendment of the proposed section 11A to match the text of Article 17 of the UDHR, in relation to the right to own property. This change is noted below in our Recommendation.


Is it appropriate to include explicit provision for compensation in the Bill of Rights Act?

9.11 The Commission has also taken a broader view, and considered how the proposed sections might fit with existing provisions of the Bill of Rights Act. As noted above, the Commission supports the inclusion of further economic, social and cultural rights in New Zealand’s human rights legislation. However, existing sections of the Bill of Rights Act do not make explicit provision for remedies, whether by way of compensation or otherwise. Therefore the provision of compensation as proposed by this amendment sets a new legislative path. The question is whether this path is, in fact, vastly different from that which now exists - by virtue of international human rights obligations and the decisions of the New Zealand courts.

9.12 For the following reasons, the Commission considers the legislative path of the Bill to accord with the existing situation in New Zealand, in particular given that remedies have already been made available by the courts for breaches of the Bill of Rights Act.

9.13 First, as the Commission noted in a February 2005 submission,^[40] the ICCPR imposes an obligation on States to ensure that any person whose rights have been violated has access to an effective remedy for the violation. The remedy is to be decided by a competent authority and is enforceable.

9.14 Secondly, international jurisprudence is clear that compensation should be available for breaches of human rights.^[41] The United Nations Human Rights Committee has recommended monetary compensation for breaches of rights in the ICCPR.^[42] Further, the European Court of Human Rights has consistently affirmed the principle of full reparation for breach of Convention rights.^[43]

9.15 Thirdly, as set out Baigent’s case,^[44] New Zealand courts have developed the concept of a public law remedy for breaches of the Bill of Rights Act. In that case, the Court of Appeal granted damages for a breach of section 21 of the Bill of Rights Act, stating that:

[The Act’s] purpose being the affirmation of New Zealand’s commitment to the Covenant ... it would be wrong to conclude that Parliament did not intend there to be any remedy for those whose rights have been infringed. ... I do not accept that Parliament intended it to be what most would regard as no more than legislative window dressing, of no practical consequence, in the absence of appropriate remedies for those whose rights and freedoms have been violated.^[45]


10. Changes to the Bill recommended by the Commission

10.1 Taking the above concerns and context into account, the Commission recommends:

➢ That property rights be incorporated in the New Zealand Bill of Rights Act along the following lines:

The right to property

1. Everyone has the right to own property alone as well as in association with others.

2. No person shall be arbitrarily deprived of property.

3. No person shall be deprived of property except in accordance with the law, in the public interest, and with just and equitable compensation.

4. Everyone has the right to the use and peaceful enjoyment of their property. The law may subordinate such use and enjoyment to the interest of society.

Human Rights Commission
August 2005

Appendix 1: Protections for property rights in international and regional human rights instruments, and in the constitutional and human rights legislation of other jurisdictions

This appendix provides an indicative rather than an exhaustive list of property rights. Its main purpose is to indicate the range and form of such provisions outside New Zealand.


International instruments

UDHR

Article 17 of the Universal Declaration on Human Rights:

Everyone has the right to own property alone as well as in association with others. No-one shall be arbitrarily deprived of his property.


CERD

Articles 5(d)(v) and (vi) of the International Convention on the Elimination of all Forms of Racial Discrimination:

Article 5

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
...
(d) Other civil rights, in particular:

...

(v) The right to own property alone as well as in association

with others;

(vi) The right to inherit.


CEDAW

Article 15 of the Convention on the Elimination of all Forms of Discrimination Against Women:

Article 15

1. States Parties shall accord to women equality with men before the law.

2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.

3. States Parties agree that all contracts and all other private instruments of any kind with a legal effect which is directed at restricting the legal capacity of women shall be deemed null and void.

4. States Parties shall accord to men and women the same rights with regard to the law relating to the movement of persons and the freedom to choose their residence and domicile.


Article 16(1)(h) of the Convention on the Elimination of all Forms of Discrimination Against Women:

Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
...

(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.


Regional instruments

Europe

The First Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms:

Article 1 Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.


Americas

Article 21 of the American Convention on Human Rights:



Article 21 The right to property

1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment to the interest of society.

2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.

3. Usury and any other form of exploitation of man by man shall be prohibited by law.


Africa

Article 14 of the African Charter on Human and Peoples' Rights:

The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.


Legislation from other jurisdictions

USA

The Fifth Amendment to the United States of America’s Constitution:

Amendment V - Trial and Punishment, Compensation for Takings

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense [sic] to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation [emphasis added].


South Africa

Section 25 of the Constitution of the Republic of South Africa:

Section 25 Property

(1) No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property.

(2) Property may be expropriated only in terms of law of general application

1. for a public purpose or in the public interest; and
2. subject to compensation, the amount of which and the time and manner of payment of which have either been agreed to by those affected or decided or approved by a court.

(3) The amount of the compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances, including

1. the current use of the property;
2. the history of the acquisition and use of the property;

100. the market value of the property;

4. the extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and
5. the purpose of the expropriation.

(4) For the purposes of this section

1. the public interest includes the nation's commitment to land reform, and to reforms to bring about equitable access to all South Africa's natural resources; and
2. property is not limited to land.

(5) The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

(6) A person or community whose tenure of land is legally insecure as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to tenure which is legally secure or to comparable redress.

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

(8) No provision of this section may impede the state from taking legislative and other measures to achieve land, water and related reform, in order to redress the results of past racial discrimination, provided that any departure from the provisions of this section is in accordance with the provisions of section 36(1).

(9) Parliament must enact the legislation referred to in subsection (6).

Australia

Section 51 (xxxi) of the Commonwealth of Australia Constitution Act:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

...

(xxxi) the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws.


India

Article 300A of the Constitution of India:

300A Persons not to be deprived of property save by authority of law
No person shall be deprived of his property save by authority of law.

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^[1] Clause 3 of the New Zealand Bill of Rights (Private Property Rights) Amendment Bill.
^[2] See, for example, Geoffrey Palmer & Matthew Palmer Bridled Power 3^rd ed (Oxford University Press, Auckland, 1997), at page 264; Philip Joseph Constitutional and Administrative Law in New Zealand 2^nd ed (Brookers, Wellington, 2001), at page 21.
^[3] For example, by Thomas J in R v Whareumu [2000] NZCA 380; [2001] 1 NZLR 655, at page 656: “The New Zealand Bill of Rights Act 1990 ... is a critical document in the constitutional framework of this country.”
^[4] Paul Rishworth et al The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003), at page 3. See, for example, the entry on the web page of the Governor-General of New Zealand entitled ‘Constitution of New Zealand’ at http://www.gov-gen.govt.nz/role/constofnz.htm.
^[5] UN Economic and Social Council Report of the Secretary-General: Promotion and protection of human rights – human rights and bioethics E/CN.4/2003/98, at page 8.
^[6] Human Rights Commission Submission on the Review of New Zealand’s Constitutional Arrangements for the Constitutional Arrangements Committee, 14 April 2005, at paragraphs 5.1 to 5.8.
^[7] Clause 39 of the Magna Carta provides that: “no man shall be ... disseised of any tenement ... except by the lawful judgment of his peers or by the law of the land”.
^[8] Richard Clayton and Hugh Tomlinson The Law of Human Rights (Oxford, Oxford University Press, 2000) at paragraphs 18.01 and 18.04.
^[9] Namely, the International Covenant on Civil and Political Rights (ICCPR); and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
^[10] Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at page 910.
^[11] Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at page 910.
^[12] Asbjørn Eide, Catarina Krause, Allan Rosas (Eds) Economic, Social and Cultural Rights (2^nd ed) (Martinus Nijhoff Publishers, The Hague, 2001) at page 196.
^[13] Asbjørn Eide, Catarina Krause, Allan Rosas (Eds) Economic, Social and Cultural Rights (2^nd ed) (Martinus Nijhoff Publishers, The Hague, 2001) at page 196. The protection of trade union property has been derived from ILO 87 and the June 1970 Resolution of the ILO, while the property rights of workers derive, for example, from ILO 95 and ILO 117.
^[14] Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at page 910, citing the European Convention’s travau préparatoires, and the European Court of Human Rights in Marckx v Belgium [1979] ECHR 2; (1979) 2 EHRR 330.
^[15] Sporrong and Lönnroth v Sweden [1982] ECHR 5; (1982) 5 EHRR 35 at paragraph 61, as cited in Richard Clayton and Hugh Tomlinson The Law of Human Rights (Oxford, Oxford University Press, 2000) at paragraph 18.27.
^[16] See Mellacher v Austria (1989) 12 EHRR 391 at paragraph 48, as cited in Richard Clayton and Hugh Tomlinson The Law of Human Rights (Oxford, Oxford University Press, 2000) at paragraph 18.77.
^[17] The specific test suggested by the New Zealand courts is set out Moonen v Film & Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA), at paragraph 18.
^[18] Lithgow v United Kingdom [1986] ECHR 8; (1986) 8 EHRR 329 at paragraph 120, as cited in Richard Clayton and Hugh Tomlinson The Law of Human Rights (Oxford, Oxford University Press, 2000) at paragraph 18.56.
^[19] Some of these issues as identified in Richard Clayton and Hugh Tomlinson The Law of Human Rights (Oxford, Oxford University Press, 2000) at paragraph 18.02.
^[20] Attorney-General v Lawrence Court of Appeal of St Christopher and Nevis (1983) 31 WIR 176, [1985] LRC (Const) 921 and Attorney-General v Jobe Privy Council on appeal from the Court of Appeal of the Gambia [1985] LRC (Const) 556, cited in Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at pages 911 and 912.
^[21] Shah v Attorney-General (No 2) High Court of Uganda [1970] EA 523 cited in Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at page 914. In addition, courts have held that the acquisition of property without the payment of compensation constitutes a deprivation: Poiss v Austria European Court [1987] ECHR 8; (1987) 10 EHRR 231, cited in Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at page 920.
^[22] Neilson v Attorney-General [2001] NZCA 143; [2001] 3 NZLR 433.
^[23] R v Hufsky [1988] 1 SCR 621, at page 632, as included in the Human Rights Commission’s submission on the Foreshore and Seabed Bill, provided to the Fisheries and Other Sea Related Legislation Select Committee on 12 July 2004, at Appendices pages 39 and 40.
^[24] Marinucci v Italy European Commission (1988) 60 Decisions & Reports 44, cited in Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at page 915.
^[25] Asbjørn Eide, Catarina Krause, Allan Rosas (Eds) Economic, Social and Cultural Rights (2^nd ed) (Martinus Nijhoff Publishers, The Hague, 2001) at pages 200 and 201.
^[26] Nihal Jayawickrama The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, Cambridge, 2002) at 919, citing the Privy Council in Morgan v Attorney-General on appeal from the Court of Appeal of Trinidad and Tobago (1987) 36 WIR 396. As included in the Human Rights Commission’s submission on the Foreshore and Seabed Bill, provided to the Fisheries and Other Sea Related Legislation Select Committee on 12 July 2004, at Appendices pages 41 to 44. The Commission also recommended the adoption of statutory criteria for compensation, as a safeguard against arbitrary use of discretion, and to ensure just and equitable redress.
^[27] See section 25(3) of the Constitution of the Republic of South Africa, reproduced in Appendix 1 to this submission.
^[28] Final Report of the Justice and Law Reform Committee On a White Paper on a Bill of Rights for New Zealand 1.8C, 1988, at page 10.
^[29] Hansard, New Zealand Bill of Rights Bill Introduction, 10 October 1989, Rt Hon Geoffrey Palmer (Prime Minister). See also G. Palmer New Zealand’s Constitution in Crisis (Dunedin, McIndoe, 1992) at page 57 (cited in Philip Joseph Constitutional and Administrative Law in New Zealand (2^nd ed) (Wellington, Brookers, 2001) at paragraph 26.3).
^[30] R v Grayson and Taylor [1996] NZCA 565; [1997] 1 NZLR 399, at page 406.
^[31] Westco Lagan v Attorney-General [2000] NZHC 1350; [2001] 1 NZLR 40, McGechan J at paragraph 58, as cited in Ministry of Justice The Guidelines on the New Zealand Bill of Rights Act 1990: A Guide to the Rights and Freedoms in the Bill of Rights Act for the Public Sector Wellington, August 2004, Part III, Section 21.
^[32] Ministry of Justice The Guidelines on the New Zealand Bill of Rights Act 1990: A Guide to the Rights and Freedoms in the Bill of Rights Act for the Public Sector Wellington, August 2004, Part III, Section 21. See Wilson v New Zealand Customs Service (1999) 5 HRNZ 134, at pages 139 and 142.
^[33] Asbjørn Eide, Catarina Krause, Allan Rosas (Eds) Economic, Social and Cultural Rights (2^nd ed) (Martinus Nijhoff Publishers, The Hague, 2001) at page 209.
^[34] Human Rights Commission Submission to Select Committee on Justice: Bill of Rights Bill 1989 at paragraph 1.
^[35] Human Rights Commission’s submission for the Inquiry into New Zealand’s Constitutional Arrangements, provided to the Constitutional Arrangements Committee on 14 April 2005, at paragraphs 3.27 to 3.31.
^[36] Committee on Economic, Social and Cultural Rights General Comment No 9: The Domestic Application of the Covenant E/C.12/1998/24, at paragraph 8.
^[37] Examples of this approach are provided by, for example, the Third rule established by the European Court of Human Rights, and Article 21(1) of the American Convention of Human Rights.
^[38] The specific test suggested by the New Zealand courts is set out Moonen v Film & Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA), at paragraph 18. See also the earlier version in Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 (CA), Richardson J at page 283; and Moonen v Film & Literature Board of Review (No. 2) [2002] NZCA 69; [2002] 2 NZLR 754 (CA), at paragraphs 14 and 15.
^[39] New Zealand Law Commission The Treaty Making Process: Reform and the Role of Parliament (NZLC R45 1997), at paragraph 195.
^[40] On the Prisoners’ and Victims’ Claims Bill.
^[41] See, for example, Maharaj v Attorney-General of Trinidad and Tobago (No.2) [1978] UKPC 3; [1979] AC 385 (PC) which was instrumental in the New Zealand Court of Appeal developing the concept of a public law remedy in Simpson v Attorney–General (Baigent’s case) [1994] NZCA 287; [1994] 1 HRNZ 42.
^[42] In 2001 the UN Human Rights Committee criticised Australia’s domestic legal system for not providing an effective remedy to persons whose rights under the Covenant had been violated.
^[43] United Kingdom and Scottish Law Commission Damages under the Human Rights Act 1998 (2000) at page 23.
^[44] Simpson v Attorney–General (Baigent’s case) [1994] NZCA 287; [1994] 1 HRNZ 42.
^[45] Simpson v Attorney–General (Baigent’s case) [1994] NZCA 287; [1994] 1 HRNZ 42, Cooke P at pages 73 and 74. In addition, two of the Judges noted in the course of the judgment that “it would be strange if New Zealand citizens could get a remedy from the United Nations Committee in New York that they could not obtain in the New Zealand courts”.