Human Rights Flashcards
(19 cards)
Why is NZBORA sometimes called a ‘Bill of reasonable rights’?
- Not a supreme law, Parliament is supreme
- Says rights can be breached if there is a reasonable justification SECTION 5
- Outlines when it is reasonable for rights to be limited (voting age, prison etc)
- Rights are important but not absolute, A privilege that can be revoked to achieve another objective if reasonable.
- NZBORA affirms rights, doesn’t create them. It can still be overruled.
What does section 7 NZBORA require from the attorney-general?
Section 7 requires the attorney-general to write a report to Parliament when proposed legislation may appear to breach human rights.
In what 3 ways can Courts be sympathetic to human rights?
- Consistent interpretation
interpreting legislation as consistently as possible in any rights standards. Section 6 - Proportionality
any government action that breaches rights must be proportional to the aim the government is trying to achieve.
so must explore and consider every option before breaching rights. - Crafting remedies for breach
courts have to decide what to do when rights are breached, government might have to pay
parliament can’t pay if they are accused of breaching rights, instead a declaration will be made by the courts saying that parliament’s legislation is in breach of the NZBORA.
Explain sections 4, 5, 6, 7, 14
Section 4: Parliamentary sovereignty
Section 5: Rights have limits
Section 6: Consistency in interpretation
Section 7: Attorney-general report
Section 14: Freedom of expression
Explain section 4 NZBORA
Parliamentary sovereignty.
Legislation can change over time, legislation can override rights.
Legislation may not be revoked impliedly on the basis it breaches protective rights
Explain section 5 NZBORA
Rights have limits.
Allows for a breach in rights only if:
- prescribed by law
AND
- reasonably justified
Explain section 6 NZBORA
Consistency in interpretation.
Requires as much rights consistency as possible.
If the court can apply legislation consistently with the NZBORA then they must, (creative interpretation in the interest of parliament’s intent).
- Serves to make it as hard as possible to make legislation that breaches rights and conceal these breaches at the same time, parliament should consider rights while legislating.
- Encourages courts to be creative in their interpretation of legislation to be as consistent with rights as possible, as well as consider future scenarios where this could be used to be inconsistent with rights.
Explain section 7 NZBORA
Attorney-general report
The attorney-general has to write a report to parliament when proposed legislation may appear to breach human rights.
Explain section 14 NZBORA
Freedom of expression.
Everyone has the right to freedom of expression
Doesn’t define freedom of expression or make any limitations clear, but no rights are absolute, even when presented as such (section 5)
What is the NZBORA
New Zealand Bill of Rights Act 1990.
A parliamentary bill of rights.
Explain how sections 4, 5, 6 of NZBORA work together
They work together to make sure parliament is held accountable when they do breach NZBORA.
Section 4 provides the context in which section 5 and 6 apply, making parliament’s say final despite these provisions.
Section 5 works to empower parliament in breaching NZBORA while drafting legislation under a few conditions.
Section 6 works to constrain parliament in breaching NZBORA as courts will attempt to apply legislation provided in a way that is consistent with it.
They work together to make it so parliament has to very expressly state that they intend to breach NZBORA which makes it so they are required to explain the reasons for the breach as provided in Section 5.
Otherwise, the courts will apply their legislation under the assumption that they did not intend to breach NZBORA as required by Section 6.
Describe the steps of the Hansen test
- Ascertain intended meaning of parliament
- Ascertain if the interpretation is apparently inconsistent with the right
- Justified limit? Is some other interest protected by the breach (s5)
- All good if limit is justified
- If not justified, try to give a rights consistent interpretation (s6)
- If rights consistency not possible, the breach is allowed anyway (s4)
Section 14 Freedom of expression functions
Important in maintaining other rights
- collective scenarios
- Marketplace of ideas, S5, important in figuring out if a breach is ‘reasonably justified’
- EG, ongoing discussion of whether 16 year olds should be able to vote, important to maintain a forum where society can formulate what they see as right or true.
Preventing injustice
- individual scenarios
- people are allowed to speak out against injustice occurring in private so authority has to face the consequences
- eg a prisoner is allowed to speak with the media if they are being abused inside state walls, however this right is often limited in this specific circumstance
Individual self fulfilment
- people can do what they and present themselves however they like as long as it has meaning and doesn’t incite violence
- important to maintain what it is to be human
- however, not free from social consequence.
Section 14 Freedom of expression limits
Legal limits
- Copyright law, defamation
- Freedom of expression can’t be used as an excuse to break the law where restrictions have already been imposed as they have been deemed to be reasonably justified.
Social limits
- You are not free from social consequence
- Eg, expressing bigoted views
Government Imposed Limits
- Some concern that the government may directly and knowingly interfere with freedom of expression
- S5 means they will ensure that a limit is reasonably justified.
What are the facts in Pointon v Police
Nude man running in the woods
Seen by a woman walking her dog
The woman complained, and Pointon was arrested and charged
What is a consequence of section 5 NZBORA?
One consequence of section 5 is that blanket restrictions on rights are almost always unlawful (unless expressly empowered by legislation). Blanket restrictions do not take into account individual circumstances and the need for discretionary exceptions, and so it is very hard to make the case that they are reasonably justified.
What is an alternative approach to the Hansen test?
An alternative approach might be to begin with trying to give the provision in question a rights-consistent interpretation. If that were not possible, then an assessment of whether there was a justified limitation on the right. Finally, if there was no justification and no rights-consistent interpretation could be found, section 6 would apply.
The exact approach to be applied in each case is controversial and something that the deciding court must work out for itself.
What is the key issue with the Hansen test?
The key issue from this perspective is that the primary mechanism for protection of rights, section 6, is considered only very late in the process.
How do we go about remedies in the Courts?
Rights are prioritised rather than the remedy like in other areas of law. There are no outlined definitions in rights legislation for how damages should be rewarded, so the court decides damages based on their perceived magnitude of the breach in different situations.
