There are no constitution rights in New Zealand:
a summary
The White Paper
The White Paper, released by the then deputy Prime Minister and Minister of Justice Geoffrey Palmer, contained some particularly controversial aspects, which sparked widespread debate.
Controversial Features of Proposed Bill of Rights
The Bill of Rights was to become entrenched law so that it could not be amended or repealed without a 75% majority vote in the House of Representatives or a simple majority in a public referendum. The Bill of Rights was to therefore have status as supreme law, thereby causing some erosion to the doctrine of Parliamentary Sovereignty. The Treaty of Waitangi was to be wholly incorporated within the Bill of Rights thus elevating the Treaty's status to that of supreme law .
A broad power was to be granted to the Judiciary to declare invalid any Act of Parliament, common law rule or official action which was contrary to the Bill of Rights.
Recommendations of the Justice and Law Reform Select Committee
The proposed Bill of Rights met with such opposition from both academics and practising lawyers that The Justice and Law Reform Select Committee, who heard submissions regarding the bill, finally concluded that New Zealand was not yet ready for a Bill of Rights in the form outlined in the White Paper. The Committee recommended that the Bill of Rights be introduced as an ordinary statute, which would not have the status of superior or entrenched law (cf. s.268 Electoral Act 1993 ).
New Zealand Bill of Rights Act 1990
The New Zealand Bill of Rights Act 1990 is:
AN ACT -
(a) To affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
(b) To affirm New Zealand's commitment to the International Covenant on Civil and Political Rights
[ 28 August 1990
The Act was passed as an unentrenced statute on 28 August 1990. The operative sections of the Bill of rights Act are sections 4,5, and 6. Of course section 3 is also of critical importance. The operative sections will not be discussed here, as their interpretation has lead to judicial confusion over the years. As such, there is also a considerable body of case law to wade through. The main principle to extract from the above summary is that there are no entrenched rights in New Zealand. There exists no written constitution.
There is no supreme law document. There is no Charter of Rights and Freedoms, as exists in Canada. Section 4 of the NZBORA expressly upholds inconsistent legislation in order that it may prevail over any right or freedom in the NZBORA. Section 4 therefore upholds the sovereignty of New Zealand's Parliament. Parliament remains supreme in the Diceyean sense. The New Zealand Parliament cannot be bound. Provided Parliament adheres to the correct procedures for enacting legislation then academically speaking, any law can be enacted however extreme. Any residual untested common law jurisdiction to invalidate repugnant laws will not be discussed here. The so-called rights that exist in New Zealand are not true rights in any constitutional sense.
All statutory rights in New Zealand can be amended or repealed by Parliament by a simple majority vote (cf. s. 268 Electoral Act 1993). Parliament may choose to expressly repeal those rights or, as a question of law, certain rights will become partially or completely inoperative. The general rule is this: citizens rights in New Zealand exist only in so far as they have not been expressly taken away by Parliament or overridden by other inconsistent legislation. Have they been overridden? As stated, this turns on a question of statutory interpretation. In many human rights statutes in new Zealand you will find certain sections, or one section in particular, that limits or restricts the entire statute. For a classic example see section 4 of the NZBORA. Other examples can also be found.
Section 57 of the MHA, at the beginning of it's text, mirrors the right to refuse medical treatment in section 11 of the NZBORA, it reads:
57 No compulsory treatment except as provided in this Part or in
section 110A
A proposed patient or patient may refuse consent to any form of treatment for mental disorder, except as provided in this Part or in section 110A.
However, that right is immediately taken away by the words '...except as provided in this Part or in section 110A.' Thus a major exception to the right to refuse treatment has been created. These exceptions lie at the heart of the forced drugging regime in New Zealand.
The HDC Code of Health and Disability Services Consumers'
Rights Regulation 1996
Compare the HDC Code, which states in clause 5:
5. Other Enactments
Nothing in this Code shall require a provider to act in breach of any duty or obligation imposed by any enactment or prevents a provider doing an act authorised by any enactment.
So where a "provider" (eg. a mental health authority's medical staff) has a statutory discretion to use force to treat a psychiatric patient under s.122B(3) MHA, no clause in the HDC Code can “prevent” this, as it is "authorised" by the MHA. Thus clause 5 renders the Code inherently weak (see also s.20(1)(a) HDC Act: see also the exception in Right 7(1) HDC Code).
Ironicially, at the same time, Right 2 of the HDC Code guarantees to the patient freedom from coercion. The word "coercion" is not defined in the Code. Clause 3 of the Code states that a provider is not in breach of this Code '... if the provider has taken reasonable actions in the circumstances to give effect to the rights...in this Code [eg. R. 2, above]'. The onus lies on the provider to prove this. For the purposes of clause 3 , "the circumstances" means all the relevant circumstances including the patient's clinical situation and the provider's resource contraints.
Surely, where mental health staff have exercised the power under s.122B(3) MHA and used reasonable force to treat a a patient it would be difficult to argue that they have breached the patient's right to be free from coercion under R.2 of the HDC Code.
The Code is merely a regulation (subordinate legislation) made under section 74 of the Health and Disability Comissioner Act 1994. It cannot prevent the operation of the Mental health Act.
Mental Health (Compulsory Assessment and Treatment) Act 1992
Some people may confuse the rights contained in the Mental Health Act with true rights. However, they are not worthy of that title at all. They are not substantive rights. Would you call a right to general information ( s.64) and a right to independent psychiatric advice (s.69) significant human rights? They are peripheral and condescending. You will notice there is no right not to be deprived of liberty or right to refuse medical treatment. Of course not, the so-called "patient" (s.2 MHA def.) has already been deprived of those rights by this stage.
Section 66 states that 'Every patient is entitled to medical treatment and other health care appropriate to his or her condition.' However, this is in no way amounts to a right to refuse medical treatment, and neither is the right to be informed about the treatment a right to refuse treatment (s.67).
What makes the rights in the MHA even more futile is that many contain limitations. For instance, a patient has no absolute right to receive visitors and make telephone calls. This so-called right is restricted to '...reasonable times and at reasonable intervals...'. This so-called right can be limited where, in the responsible clinician's opinion: '...such a visit or call would be detrimental to the interests of the patient and to his or her treatment.' In section 73 a patient has a right to receive letters and postals articles. However, section 73 is subject to section 123, which confers a power to vet the patient's incoming mail ( see also section 74; s.70 right to legal advice cf. for s.23(1)(b) NZBORA see Sestan v DAMHS Waitemata DHB NZ (CA) 2006, at paras. [56] -[64]). ).
All of the so-called rights below are undeserving of the title "rights". All could be repealed by the Parliament of New Zealand by a simple majority vote. That general rule reflects the doctrine of parliamentary sovereignty that continues to exist in this country.
Mental health (Compulsory Assessment and Treatment) Act 1992
Part 6 Rights of patients:
s.63A Rights of proposed patients
s.64 General rights to information
s.65 Respect for cultural identity, etc
s.66 Right to treatment
s.67 Right to be informed about treatment
s.68 Further rights in case of visual or audio recording
s.69 Right to independent psychiatric advice
s.70 Right to legal advice
s.71 Right to company, and seclusion
s.72 Right to receive visitors and make telephone calls
s.73 Right to receive letters and postal articles
s.74 Right to send letters and postal articles
[STOP FORCED DRUGGING]
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[STOP_FORCED_DRUGGING]
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