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

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.