To mark the 35th anniversary of the New Zealand Bill of Rights Act, LawTalk invited Professor Kate O’Regan from the University of Oxford to reflect on international human rights protections. Professor O’Regan visited Aotearoa New Zealand as a keynote speaker at the ‘Bill of Rights Act: Legacy and Lessons’ conference, organised by the University of Canterbury Faculty of Law in collaboration with the New Zealand Law Society Te Kāhui Ture o Aotearoa. Drawing on her experience as a judge of the South African Constitutional Court, ad hoc judge of the Supreme Court of Namibia, and inaugural Director of the Bonavero Institute of Human Rights, Professor O’Regan shared her insights on the emerging challenges affecting human rights across the world.

Can you talk about the connection between democracy and the rule of law across jurisdictions – how do you think/do you think centering human rights in South Africa’s constitutional transformation contributed to democratic stability?

The rule of law, democracy and human rights are different concepts, but they are closely related and together they are the foundation of open and free societies. The South African Constitution recognises this by declaring them as founding values. For a society like South Africa where human rights had not been protected and indeed flagrantly violated by the apartheid government over its four decades of rule, providing in the constitution for the protection of human rights was an important first step. But of course, there is much to be done to continue to strengthen democracy, the rule of law and the protection of human rights in South Africa, and that is the case in many democracies in the world. There is more work to be done.

You’ve said previously, the best thinking happens when people disagree, can you talk to some examples of this?

I was talking here from the experience of sitting on a collegiate court and disagreeing with colleagues and trying to understand the source of that disagreement and then seeking the possibility of bridging it, which can happen, but only if one takes time to really listen and grapple with their arguments. I think this can happen in other contexts such as political disagreements too, but there is an important premise: people think better when they disagree but they will probably only do so if they respect one another. If we listen closely to those with whom we disagree and try to understand in good faith the source and basis of the disagreement, then we often learn something valuable and it can help us rethink our own ideas. If we do not respect those with whom we disagree and dismiss them without engaging with their ideas, this will not happen. And if we only talk to people with whom we agree that kind of deep rethinking is less likely to happen.

Like South Africa’s Constitution, the New Zealand Bill of Rights Act came into being in the 1990s. Reflecting on the Bonavero Institute’s work on human rights issues across a range of jurisdictions, what do you think we can expect from the next 35 years of our Bill of Rights Act?

Both the New Zealand Bill of Rights Act and the South African Constitution were adopted at a time when constitutional democracy and bills of rights were being adopted in many parts of the world: other examples are the Namibian Constitution 1990, the Canadian Charter of Rights and Freedoms of 1982, the UK Human Rights Act of 1998, the Hong Kong Bill of Rights Act of 1990. This was a time when democracy, the rule of law and the protection of human rights was waxing across the world, in the aftermath of the fall of the Berlin Wall. Today we live in a different world where all the major democracy and human rights indices tell us that democracy, the rule of law and the protection of human rights are in steep, though not universal, decline. It is to be hoped that the pattern of decline may be reversed in the years ahead but that is not certain. Changing geopolitics will be important to what happens, as will what happens in local politics in each jurisdiction of the world.

On using law for justice – what are some of the challenges of making laws work without having unintended rights consequences?

Most laws have unintended and unanticipated consequences and some of these consequences, but not all, will have human rights implications. Legislatures thus have a responsibility to continue to monitor the application and impact of laws they enact to ensure that they work as anticipated and do not infringe human rights. Courts play a role here in the protection of human rights, although that role varies depending on their powers.

Across the world, what are you seeing as the big emerging challenges testing existing domestic rights frameworks?

There are many challenges facing the world. To mention two: the digital world, while presenting opportunities, also presents sharp challenges for the protection of freedom of speech, including the media, privacy, and equality. The regulation of both the uses and applications of artificial intelligence are increasingly challenging, as is the regulation of global very large online platforms. The climate crisis also presents severe human rights challenges and this will undoubtedly accelerate in the years ahead. Both of these challenges are global in character and their global nature often makes addressing them at domestic level effectively difficult. Yet we are in a time when geopolitical tensions make it unlikely that global agreements on how to address these challenges will be reached, and so domestic systems are having to seek to address them individually.

How do you see the future of domestic rights protection evolving over the next 35 years?

If human rights are to be protected and fulfilled across the world, they have to be claimed and protected everywhere, from the ground up. Achieving the protection of human rights is a challenge for every generation. It is not possible to predict what the next 35 years will bring but what is clear is that we cannot simply rely on the powerful to protect human rights, they have to be asserted by ordinary people everywhere.