The New Zealand Centre for Human Rights Law, Policy and Practice was officially launched in January 2012 and in October 2012 we featured its co-founder and inaugural Director, Kris Gledhill.
Now they have released “Human Rights Agenda”, the first issue of a quarterly bulletin providing information, discussion and case notes on human rights of particular interest to the legal profession.
‘Working Paper’ Extract
The following extract, featured in the bulletin, comes from their Policy and Practice ‘Working Paper Series’.
Not in New Zealand’s waters, surely? Labour and human rights abuses aboard foreign fishing vessels
by Christina Stringer, Glenn Simmons and Daren Coulston
In August 2010, Oyang 70, a South Korean fishing vessel fishing in New Zealand’s exclusive economic zone (EEZ), capsized with the loss of six lives. Beyond the tragedy of the loss of lives, information obtained from the surviving crew detailed labour and other abuses aboard the Oyang 70. This is not the first allegation of abuse aboard foreign charter vessels (FCV) fishing in New Zealand’s EEZ. New Zealand government policy supports the use of high quality FCVs to complement the local fishing fleet, provided FCVs do not provide a competitive advantage due to lower labour costs and foreign crew receive protection from exploitation. Using the global value chain and global production network analyses, this research examines which institutions are responsible for the working conditions of an important but largely invisible and vulnerable workforce on FCVs in New Zealand waters. Semi-structured interviews were undertaken with key individuals in the fisheries industry and with foreign crew. We found within the fisheries value chain there is an institutional void pertaining to labour standards on board FCVs and in some cases disturbing levels of inhumane conditions and practices have become institutionalized.
About the The Working Paper Series
The Policy and Practice ‘Working Paper Series’ provide an online forum where scholars and practitioner can disseminate their research and practical experiences regarding human rights. The Working Paper Series is administered by the Centre based at the University of Auckland. Find out more …
The case note below is one from the collection in the bulletin covering New Zealand and Australian cases.
Freedom of Expression, whether bylaw ultra vires and disproportionate restriction on the right to freedom of expression
Schubert v Wanganui District Council  NZAR 233
This High Court case from March 2011 found that a bylaw passed by the Wanganui District Council to restrict the display of gang insignia in specified places was unlawful on two counts.
The bylaw’s substantive effect was to prohibit the display of gang insignia in all public places.
However, the Wanganui District Council Act 2009 only provides the Council powers to regulate, a total prohibition was therefore ultra vires. The bylaw was further held to be invalid because the council did not consider the effect of the bylaw on the right to freedom of expression as protected by the NZBORA.
The Wanganui District Council made a bylaw under the Wanganui District Council (Prohibition of Gang Insignia) Act 2009 that specified which public places in the district persons may not display gang insignia at any time. This case was an application for judicial review to quash the bylaw. The applicant (a member of the Hells Angels gang) submitted that, contrary to s 5(6) of the Wanganui Act, the bylaw in effect specified all public places in the district as places where gang insignia was prohibited. The applicant additionally submitted that the bylaw was a disproportionate restriction on the right to freedom of expression and therefore in breach of s 5 of the New Zealand Bill of Rights Act 1990.
They key basis of Clifford J’s decision turned on whether the bylaw was in breach of s 5(6) of the Wanganui Act and whether the bylaw was a disproportionate restriction on the right to freedom of expression and thus in breach of the NZBORA. Due consideration was given as to whether the bylaw was nevertheless intra vires the Act and therefore saved by s 4 of NZBORA.
Section 5(6) of the Wanganui Act stipulates that:
Clifford J’s interpretation viewed s 5(6) as only added pursuant to the recommendation made by The Law and Order Select Committee in 2008. The Select Committee recommended the addition of s 5(6) to make clear the well established principle that the power to regulate an activity does not amount to a power to totally prohibit it. The Wanganui District Council, therefore, was not given the power to make all public places specified places.
Clifford J held that a power to prohibit in specified places implies no power to prohibit generally.
By examining the purposive and substantive effect of the specified areas he held that the bylaw was ultra vires because although the bylaw did not literally ban gang insignia in all areas of the Wanganui district, its substantive effect was to do so.
Clifford J found further that this case related to the important right to freedom of expression. Whilst banning gang insignia in all public places could arguably help achieve the purpose of the Act and in doing so may very well have imposed a justified and lawful limit to the right to freedom of expression; the Council still needed to consider the significance of that right when making the bylaw, and it failed to do so.
The Council was held to have erred in law in believing that it did not have to consider the bylaw’s significance relative to the NZBORA, specifically its infringement on the right to freedom of expression. On the basis of this mistaken belief that the NZBORA issues were no longer relevant to their decision (as evidence by the minutes of their 31 August meeting) the council did not properly consider whether the geographic extent of the bylaw as determined by them was “reasonably necessary” in terms of the NZBORA. The bylaw was held to be invalid for this reason also.
This case underlines the importance the courts will place on regulatory authorities giving due consideration to the NZBORA when making bylaws.
Geraldine Burnett | Editor, New Zealand Centre for Human Rights, Law Policy and Practice Bulletin
Read more Human Rights Case notes from the bulletin,including Australian.
Related sites of interest:
Related Thomson Reuters publications with Kris Gledhill