Crown of certain lands in the state-owned enterprises contravened s9.4 The judgments
wrestling with the principles of the Treaty are no less controversial today than they were
when they were issued. Many statutes enacted subsequently have referred to the principles
but still in none have they been defined.
A lack of definition in international instruments can also be problematic for domestic courts.
Everyone has the right to be free from unreasonable search and seizure under s21 of the New
Zealand Bill of Rights Act. That comes from Art 14 of the International Covenant on Civil
and Political Rights. For the last 10 years and more our courts have wrestled with what
comes within the concept of search and what is unreasonable.
Another example with potential for litigation is in the 2002 New Zealand Trade Marks Act.
Section 94 excludes from infringement the use of a registered trade mark in comparative
advertising. The section continues however with this:
but any such use otherwise than in accordance with honest practices in
industrial or commercial matters must be treated as infringing the registered
trade mark if the use, without due cause, takes unfair advantage of, or is
detrimental to, the distinctive character or the repute of the trade mark.
The phrase honest practices in industrial or commercial matters comes from the 1883 Paris
Convention on Industrial Property. It was taken into the United Kingdom Trade Marks Act
1994 and adopted in New Zealand from there. Just what it meant in 1883 and what it means
today, and what undue cause and unfair advantage mean, remains to be seen.
Interpretation of such language, when it gives rise to competing views, provides ammunition
to dissatisfied litigants whose aim generally is at the judges. But it really should be seen as
part of the total legal performance dictated by Parliament.
The importation of the broad language of international instruments raises another issue, that
of access to law. It has been highlighted for me over the last decade in the area of human
rights. Accession to, and incorporation of, the major international instruments with their
broad statements of individual rights and freedoms in constitutions or statutes will be familiar
to most of you. In litigation raising issues as to the content and scope of these rights and
4
New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641.