Fundamental Rights and Private Litigants: The New Zealand Bill of Rights Act 1990 in Private Common Law Disputes

41 Pages Posted: 6 Nov 2019

See all articles by Lucy Kenner

Lucy Kenner

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: October 29, 2019

Abstract

This paper addresses the effect of the New Zealand Bill of Rights Act 1990 (NZBORA) in disputes between private parties which arise under the common law. Because the NZBORA applies to the courts as the judicial branch of Government, this implies that it imposes obligations on the courts when deciding cases, including ones between private parties. However, through an assessment of the relevant case law, I argue that as the courts protected rights in disputes between private parties through the common law before 1990, the NZBORA does not introduce this role. I then distinguish between the Act’s application to the courts, and other ways it affects disputes between private parties. While the NZBORA does not require a change in the courts’ approach, it has resulted in a greater emphasis on rights in private common law disputes through a number of channels. These include forming part of the statutory landscape, reinforcing existing values, enhancing access to rights for litigants and providing consistent language. I conclude that the NZBORA’s effect on private common law disputes is complex, but ultimately has been a beneficial one.

Keywords: horizontal effect, New Zealand Bill of Rights Act 1990, NZBORA, human rights, private common law

JEL Classification: K00

Suggested Citation

Kenner, Lucy, Fundamental Rights and Private Litigants: The New Zealand Bill of Rights Act 1990 in Private Common Law Disputes (October 29, 2019). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 24/2019. Available at SSRN: https://ssrn.com/abstract=3477017

Lucy Kenner (Contact Author)

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington, Victoria 6140
New Zealand

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