Rights Flashcards
(51 cards)
A human right is a?
Political claim which the legal system responds to
It is a claim that certain intrests a person has should be privellaged in the ongoing political calculus involved in the practice of government
Rights are …. but not …
Rights are privellaged but not absolute interests
Why are rights important?
- Important for many values protected in society
- Set boundaries to how government can legislate around us
Human rights engage what 3 things?
- Liberty: they limit the ways in which the state can justifiably interfere with our lives
- Equality: all humans engage the same rights
- Fraternity: the sense of common dignity and enjoying the protection of human rights by virtue of our shared humanity
NZ BORA can be referred to as 2 things:
- Parliamentary BORA - because it is an ordinary statute enacted by Parliment, not being entrenched
- Can be appealed and amended by parliment like an ordinary statute
Reconises parlimentary soverignty/ supremacy in this sense - S4
It is up to parliment to be rights consistent because, in theory, they are empowered not to be. - Bill of reasonable rights - because, while individuals have rights, these rights are subject to limitations to protect public order, safety and the rights of others - reflected in S5 of the NZBORA
The rights can be breached if reasonably justified in a free and democratic society
S4 of NZ BORA =
Protects parlimentary supremacy expressly
Legislation formulated by parliment, in theory, can overide rights whenever.
S5 of NZ BORA =
Rights have limits
They are not superior and are subject to restrictions
The 2 limits which must be met for breach:
1. Prescribed by law - (set out in a statute somewhere)
2. Reasonably justified in a democraic soceity
S6 of NZ BORA =
Presumption of Consistency
In the case of ambiguity, an interpretation of consistency with BORA should be prefered over one that is not.
What is unique about the NZ BORA?
There is no remedy for breach.
What are the 2 remedies possible for NZ BORA breach?
- Damages
- Declaration of Inconsistency
What case links to damages?
Baigent v Police
Went to wrong house for a drug bust, even after becoming aware they went for a look around anyway (forcibly entered the home)
Judge thought it would be odd to enact a statute like NZBORA unless there were meaningful consequences when breach occurs. therefor, the judge held that Parliment wants the courts to fashion a remedy
- When there is a breach, you can claim damages or the courts will fashion an appropriate remedy
What case links to Declaration of Inconsistency?
Taylor v Attorney General
It is different when the breach of rights is by the legislation and not by somebody else.
They have no legal effect - not binding BUT they have a constitutional effect as it draws attention to the inconsistency and created a public and political impulse to address it.
National Govt enacted legislation which banned all prisoners from voting desipite AG flagging that is was a breach. Taylor appealed this
First time a declaration of inconsistency was used.
What is a declaration of inconsistency?
Not a legally binding thing, but something which the court can issue to make a statement to Parliment that there is an inconsistency
NZBORA S14 =
Freedom of Expression Section
Says that “everyone has the right to freedom of expression, including the freedom to seek receive and impart information and opinions of any kind in any form”
What 4 reasons are there for us having a freedom of expression?
- Marketplace of ideas
- Political contest - needed for healthy political discussion and democracy as it allows open debate and discussion that allows the govt to determine what the will of the people is and how they can implement that will.
- Individual self fufillment - we want to be us.
- Preventing injustice - people need to feel they can speak up and investigate wrong doing or else we will not be able to fix injustice.
What is the Marketplace of Ideas?
Old justification for freedom of expression
There are rival/ competing versions of the truth but no one is individually best placed to understand what the truth is so therefor we need to have a marketplace of ideas to best find the truth.
The truth will win out
We want lots of ideas so we can assess them
What are the 3 limits on freedom of expression?
- Legal limits: eg copyright, defamation
- Social limits: people separating from you
- Government imposed limits: government has a lot of power, eg; they can impose regulations in crisis to reduce any social gatherings (COVID)
The benefits of freedom of expression should….
Outweigh the consequences/ limits
4 freedom of expression cases are?
- A-G v Smith
- Pointon v Police
- Morse v Police
- Lowe v Police
Key ratio in A-G v Smith
Because no meaning was being conveyed by Smith’s wearing of a wig, this was not enough to amount to expression and therefor engage S14
Court of appeal distinguishes that expression happens when you are doing something to stand out
But Smith was trying to fit in - disginguished Pointon who was trying to stand out.
Key ratio in Lowe v Police + when it would be different
Nude bike riding was not offensive - Quiet road and can’t see parts - cars going past at high speeds would not be able to see much
The complainant was concerned about high speed not OFFENDED by his nudity - different from Pointon.
He is committed to being nude but not offending by it - no intention.
Would be different if mowing lawn in the nude on a residential area where many could see him
- Higher public exposure (includes families and children) = high likelihood of being seen
In this setting where it is more public dense, there is a higher expectation of public order - higher potential to offend others.
- Rural vs residential
For there to be a claim against expression rights…
They have to be offended not just concerned
Material facts in Attorney General v Smith
Notorious prisoner who previously made headlines for wearing a disguise, going to boarder, getting on a plane and flying to south america - escaped the day visists which run on trust
He was found
He later applied to prison officials to wear a wig but it got denied in connection to previous actions
Smith challenged this decision soughts to wear a wig not for religious reasons but as a personal choice to cover his baldness, asserting it was a form of self expression.
Agree of disagree with the courts decision in Attorney General v Smith
Why didn’t the court make their decision in the lens of S6 rather than S5
There is a rights consistent approach and this could have been taken over the inconsistent one they chose.
Eg; a school giving boys the same hair cut does not say nothing, it is actually an expression of them trying to say they are tidy etc.
Eg; buying all the trendy clothing expresses that you are cool BY FITTING IN.
Fitting in IS saying something a lot of the time
