21 September 2007

Bill of Rights - application to private disputes?

A colleague of mine recently expressed some concern that the freedom of expression in section 14 of the Bill of Rights did not get mentioned in the recent High Court decision resolving the copyright dispute between TV3 and Sky about the screening of RWC footage: > Mediaworks NZ Ltd v Sky Television Network Ltd (18.09.2007, Auckland High Court, Winkelmann J, CIV-2007-404-5674) Here's my response: I think whether or how the Bill of Rights applies – and therefore whether s14 ought to have been addressed – is probably a bit more complex than it appears on first blush. In particular, there is a question of whether this litigation involved a state actor/act such that, under section 3, the Bill of Rights applies. In essence, the dispute is a dispute between two private parties. The only purported "state" involvement is either (a) the judiciary adjudicating on the dispute or (b) Parliament passing legislation regulating private disputes of this kind. It's some time since I looked at the point, but I recall the question of whether the Bill of Rights applied directly to the common law (and, by analogy, interpretative tasks under legislation regulating private disputes) was somewhat controversial. The argument advanced was the courts were mentioned in s3(a) – therefore their actions in developing the common law were caught and the common law had to be Bill of Rights consistent. That approach was rejected in Canada, where the Supreme Court said the Charter did not directly regulate the common law (Dolphin Delivery, Hill v Church of Scientology). However, the application of human rights instruments to the common law has been accepted in other jurisdictions, including, I understand, the UK under the HRA. Now, apparently, this issue seems to have been "definitively resolved" without any fanfare, at least some of the texts suggest it has been resolved. A quick look at the jurisprudence points to the following cases:
  • Elias J ruled the Bill of Rights directly applied to the common law in Lange v Atkinson [1997] 2 NZLR 22 (HC) (and that point was not questioned by the Court of Appeal).
  • The application of the Bill of Rights to the development of the law by judges was asserted in (dissenting) judgments in R v Pora [2001] 2 NZLR 37 and R v Shaheed [2002] 2 NZLR 377.
  • The need for common law developments to comply with the Bill of Rights was taken as a given in Hosking v Runting [2005] 1 NZLR 1.

Without undertaking an in-depth analysis of these cases, it's clear that the issue has not been subject to extensive consideration by the courts. I think the question deserves greater reflection. And, I'm not convinced either that the courts have actually grappled with the implications of the idea that s3(a) binds the courts to develop the common law consistently with the Bill of Rights. Expression cases might be easy ones, where the common law has always grappled with the balance to be struck between freedom of expression and other interests. However, does this mean that other common law principles (and statutory provisions regulating private relationships) similarly need to be Bill of Rights consistent? Section 21 might require the common law doctrine of distress damage feasant – that, amongst other things, allows private property owners to tow illegally parked cars – be revisited? And s19 might require the revision of the principle that admission to a private club or society is entirely discretionary and the courts will not force a club to admit an unwanted member, if the reason for refusal triggers a prohibited ground of discrimination? Of course, the fact that the Bill of Rights might not directly apply does not stop the values in the Bill of Rights forming a backdrop for the common law or interpretative questions. Or those values – or fundamental rights generally – being considered in each of those tasks. But there are important differences between direct and indirect application of the Bill of Rights. It's a pity our courts haven't been more clear about this point.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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