A.4 Human rights frameworks

As the human, environmental and economic costs of large-scale natural disasters have grown in recent times, so too has awareness of the significant human rights issues they can create or reveal.

The Human Rights Commission described the Canterbury earthquakes of 2010 and 2011, for example, as not just an unprecedented natural catastrophe but ‘one of New Zealand’s greatest contemporary human rights challenges’.⁴⁵ Similarly, public health crises can also result in people’s human rights being impacted, both by the event itself and by the response.

Whatever their cause, it was known prior to the pandemic that national emergencies test not only the laws, institutions and mechanisms designed to protect people’s lives but also those intended to safeguard their human rights. Typically, the rights of the most vulnerable members of society are especially challenged. As the Human Rights Commission said of natural disasters, although they are ‘indiscriminate in the devastation they cause to whole populations, […] the poor, the vulnerable and the marginalised suffer most.’⁴⁶

A number of key principles, which were part of Aotearoa New Zealand’s existing human rights framework, were impacted by new enactments and the exercise of statutory powers during the COVID-19 pandemic. The general human rights landscape has recently been painted in Ko tō tātou kāinga tēnei: Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019.⁴⁷ While the ultimate focus of the Christchurch terrorist attack report was very different from this one, the underlying human rights framework is essentially the same for both inquiries, and we respectfully agree with and adopt the outline of Aotearoa New Zealand’s international and domestic human rights framework provided by the Commissioners for that Inquiry^xx in Part 2 of their report.

Aotearoa New Zealand’s human rights framework before COVID-19 looked much as it does today – a mix of domestic laws (with supporting regulations), international laws, and United Nations human rights treaties, declarations, resolutions and other instruments which New Zealand has adopted. Te Tiriti o Waitangi also forms part of the framework, and the Human Rights Commission has stated that te Tiriti is ‘New Zealand’s original human rights declaration’.⁴⁸ Encompassing both universal and indigenous rights, te Tiriti aligns with many of the international human rights instruments that bind Aotearoa New Zealand.

As Ko tō tātou kāinga tēnei observes, the New Zealand Bill of Rights Act 1990⁴⁹ was a vital part of the legal context in which the events in question took place. The same point applies to the management of the COVID-19 pandemic in Aotearoa New Zealand. Fundamental rights and freedoms affirmed by the Act were engaged in a variety of ways in the period under inquiry, including:

• The right not to be deprived of life (section 8), not to be subjected to medical or scientific experimentation (section 10), and to refuse to undergo medical treatment (section 11).
• Freedom of expression (section 14) and the right to manifest religion and belief in community with others (section 15).
• Freedom of peaceful assembly (section 16), freedom of association (section 17), and freedom of movement (section 18).
• The right to be secure against unreasonable search or seizure (section 21), and the right not to be arbitrarily detained (section 22).

Each of these rights has its own sometimes complex jurisprudence and caselaw. It is beyond the scope of this report to delve into the detail. A point of vital significance, though, is that the rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 are not absolute. They may be subject to other Acts of Parliament (section 5) and ‘such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’ (section 5). And, unlike rights protected by the constitutions of certain other countries,⁵⁰ the rights and freedoms affirmed in New Zealand’s Act can be overridden by ordinary laws passed by a simple majority in the House of Representatives. In this sense, New Zealand’s Bill of Rights is not ‘entrenched’^xxi and can be modified with relative ease by a simple parliamentary majority. Whether this is a strength or a weakness in our constitutional arrangements may legitimately be the subject of debate; but that is the situation under our current law. With only a few exceptions,^xxii Aotearoa New Zealand’s human rights framework is therefore moderately flexible.