- Matthew Smith
Corporate human rights
There has been a noticeable increase in the United Kingdom (UK) commercial and tax cases raising human rights issues. One recent study found that in the year to October 2011 the reported cases where businesses had used human rights arguments had risen 26%, and that there had been a 36% leap in human rights arguments raised against Her Majesty’s Revenue & Customs in tax cases. A leading barrister said in comments on these UK trends that:
When the Human Rights Act was introduced few practitioners saw it as a powerful tool for use in commercial disputes. Yet this may be the next phase of development of human rights law in the UK.
So it may be in New Zealand too.
Businesses embracing rights
The New Zealand Bill of Rights Act 1990 (BORA) makes very clear in s 29 that except where its provisions otherwise stipulate, the BORA rights apply “so far as practicable, for the benefit of all legal persons as well as for the benefit of all natural persons”; a point which Andrews J confirmed in Zenith Corporation Ltd v Commerce Commission at [70]. It follows that BORA has the potential to be used by businesses in New Zealand: both offensively as a sword; and defensively as a shield.
The defensive use of BORA as a shield is the more common of the two business uses. Examples include litigation to prevent class actions being brought against a corporate as a breach of natural justice under s 27(1) because the claimants were unidentified (Commerce Commission v Carter Holt Harvey Ltd a0t [41]-[42]); litigation to prevent the retention by a regulator of possibly incriminating evidence under s 21 because the evidence was unlawfully or unreasonably obtained (Tranz Rail Ltd v District Court at Wellington); and litigation directed to absolving or mitigating criminal liability for breach of the s 25(b) right to trial without undue delay (Zenith Corporation Ltd). To date it is less common for businesses to use BORA offensively –as a sword – although there are some precedents. Two examples of this use of BORA by businesses are litigation to compel the publication of corrective statements under s14 where a business was defamed (TV3 Network Ltd (in rec.) v Eveready New Zealand Ltd [1993] 3 NZLR 435 (CA)); and litigation to require public funding of support services under s19(1) to avoid discrimination (Idea Services Ltd v Attorney-General). Claims to use BORA to protect uncompensated cancellation of contractual rights have been less successful (Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC)).
Looking forward
Human rights case law in comparative jurisdictions, including the UK and Canada, shows that there are a variety of other business and human rights issues we might explore. As Cooke P recognised in Baigent’s Case,BORA “requires development of the law when necessary” ([1994] 3 NZLR 667, 676 (CA)). That fact, when coupled with the breadth of the terms of BORA’s individual rights, means there is much potential to make BORA a powerful tool in commercial settings, as it already is in non-commercial areas. As in the UK, this may well be the next phase for the development of human rights law in New Zealand.
Matthew Smith is a barrister at Thorndon Chambers. He is also the author of the New Zealand Judicial Review Handbook.
