Verticality Challenged: The Judiciary’s Duty Under Section 3(a) of the New Zealand Bill of Rights Act

Abstract

The orthodox “vertical” view of domestic human rights instruments decries their application to “horizontal” relations between private parties, preferring the maintenance of bright-line boundaries between private and public law. However, recent scholarship rejects this approach. This paper likewise reasons that the inclusion of the acts of the judiciary in s 3(a) of the New Zealand Bill of Rights Act 1990 (BORA) has altered the courts’ role, imposing a duty upon the courts to uphold rights in both vertical and horizontal contexts. Nevertheless, few private law cases have employed BORA. This paper calls for a more widespread awareness of s 3(a)’s potential application to private law. It contends that, in respect of the interpretation of private law statutes, ss 4 and 6 overshadow s 3. Moreover, it argues that s 3(a) entitles the courts to evaluate the rights compliance of the common law and, in rare cases, to create new causes of action based on BORA. Rather than comprising an unwanted interference with private law, BORA’s commonplace application to private law will promote coherence of purpose throughout New Zealand law. This will enhance the rule of law and better realise BORA’s purpose of affirming, protecting and promoting fundamental rights and freedoms.