Horizontal Confusion: Why We Still Do Not Know How the New Zealand Bill of Rights Act 1990 Affects the Outcome of Litigation Between Private Persons

Abstract

This paper addresses an often forgotten feature of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act): its impact on litigation between private persons. This area of Bill of Rights Act jurisprudence has received limited attention since the enactment of the Bill of Rights Act in 1990. It is argued in this paper that after 20 years of uncertainty it is time for the courts to confront this issue and make a comprehensive ruling on how the fundamental rights contained in the Bill of Rights Act apply in court cases between private persons. Such a ruling is necessitated by the unreasoned and ad hoc way in which the courts have applied, or not applied, the Bill of Rights Act to litigation between private persons. This paper will begin by briefly explaining how it is that the Bill of Rights Act can apply to litigation between private persons – an effect known as “horizontal application”. Secondly, it will be shown that it is now relatively well accepted that the Bill of Rights Act applies to the courts and to the common law created by the courts. However, it will be argued that the full effect of this horizontal application in cases between private persons is still very uncertain. Thirdly, several theories that have developed to explain the ways in which the Bill of Rights Act affects the outcome of litigation between private persons will be discussed. During this discussion it will be argued that the theory that best describes the effect of the Bill of Rights Act on the courts is one that requires all actions of the courts, including the outcome of individual cases between private persons, to be consistent with the Bill of Rights Act. It will be shown that this theory is consistent with the majority of case law and with emerging international trends towards horizontal application. Fourthly, the effect of the Bill of Rights Act on the courts will be contrasted with its effect on Parliament. Finally, it will be argued that action must be taken by the courts to remove the considerable amount of uncertainty apparent in this area of Bill of Rights Act jurisprudence ...