A Part 2 - Cal Flashcards
1
Q
what are the 4 steps to find the meaning of an ambiguous word?
A
- isolate the ambiguous word.
- see if the word is defined in the interpretative section. 3. if not, use word tools to create arguments that the Prosecution and Defence would use to advocate for a particular interpretation of the word.
- conclude on what argument the court is more likely to be satisfied with.
2
Q
what does “unless the context otherwise requires” mean if said in
a statute about the definition of a word?
A
it means that the court is not bound to that decision.
3
Q
why does the interpreter must stick to a definition of a word if it is defined in a statute?
A
because the definition shows clearly what Parliament means to encompass with that word.
4
Q
what is the definition of “means” in stat interp?
A
means is an exhaustive term, which is closed, meaning that what follows in the statute is all the possibilities that Parliament meant to cover.
5
Q
why will Parliament use the word “includes” to frame a sentence in a statute?
A
in case Parliament missed something on the list, or to allow words that have not been considered (or even invented yet) to be added in the future.
6
Q
what is the definition of “includes” in stat interp?
A
includes is a non-exhaustive term, which is open, meaning that what follows in the statute is simply an indication of what Parliament but more can be added to the list.
7
Q
what does the word “and” mean in stat interp?
A
“and” is conjunctive”, meaning both X and Y are necessary to establish liability under the statute
8
Q
what does the word “or” mean in stat interp?
A
“or” is dis-conjunctive, meaning either X or Y is necessary to establish liability under the statute
9
Q
what is the definition of the words “shall” and “must” in stat interp?
A
“shall” and “must” are mandatory, meaning that the duty must be performed
10
Q
what is the definition of the word “may” in stat interp?
A
“may” is directory, meaning that the power or permission may be exercised, but it need not be.
11
Q
what does Noscitur a Sociis mean?
A
words are known by the company they keep e.g. a word can take its meaning from the other words that surround it.
12
Q
noscitur a sociis acts to ________ wider words, and therefore moves away from a ______________ interpretation of the words. however the word needs to carry its own _______________.
A
Limit, Literal, meaning
13
Q
the words “shoot, stab, cut or wound” mean what in regards to the word “wound”?
A
“wound” is potentially quite an expansive word, but it could be covered
by the preceding words to describe actions that cause physical harm or injury.
14
Q
what does Ejusdem Generis mean?
A
a general word is of the same kind as surround specific words
15
Q
how does Ejusdem Generis narrow the literal meaning?
A
Ejusedem Generis is used when there is a “catch-all” phrase e.g. other appliance… at the end of a list of specific words. it created a “class” of the other words to exclude the word. need to provide an example.
16
Q
what are the 4 requirements for the use of ejusedem generis?
A
- specific words must belong to an identifiable class.
- the specific words cannot exhaust the class.
- there must be more than one specific word.
- the purpose of the legislation must not be defeated.
17
Q
how could ejusdem generis be used for the words “banner, placard, poster or other sign”
A
“other sign” is a potentially quite an expansive term, but it could be representing a class of written communication.
18
Q
what does Expressio unius est exclusio alterius mean?
A
the expression of one thing is another express inclusions are implied exclusions
19
Q
the statement “children under 12 admitted free” when using Expresso units, shows a clear inference that:
A
children above the age of 12 must pay
20
Q
how could expresso units be used in a list of words? think mine example…
A
“any land, houses and coal mines” could [arguabley] imply that gold mines are excluded, because al- though gold mines can be included in “land”, the argument is that Parliament clearly considered the concept of mining, so gold mines should there- fore be excluded.
21
Q
what does Generalia Specialibus non Derogant mean?
A
the general shall not detract from the particular - when there is a new general statute enacted, but an earlier statute has specific provisions that are now conflicted, you generally ignore the new general statute due to the specificity of the previous statute for that specific thing.
22
Q
Parliament has specifically stated in s ___ of the Legislation Act 2019 that
“the meaning of legislation must be ascertained from its text and in light of its ______________ and context.”
A
10, purpose
23
Q
what is the plain/literal approach?
A
giving words their plain and ordinary meaning, is often a wide definition used by the prosecution to generally encompasses the actions of the defendant. judges will look at the dictionary of these words definition.
24
Q
why do courts like to use the literal approach?
A
It means that the law is certain and predictable to the layman which up- holds the ROL.
25
what is the Golden Rule?
judges can depart from the plain meaning if doing so would create an absurd result, or inconsistency with the rest of the statute. state the inconsistency it creates!
26
what is the purposive approach?
focuses on the purpose of the Statute. sometimes found in the purpose section or long title in older statutes. other times the facts may hint to why Parliament enacted the legislation. think about what Parliament was trying to achieve with this piece of legislation!! what were they trying to prevent from happening?
27
what is the mischief approach and its history? and was was assumed that Parliament would do?
essentially the purposive approach. when the common law (judge made law) was the dominant source of law (as opposed to Parliament made legislation) it was thought that the common law was the laws proper source so should be able to develop on its own terms. the only place for Parliament made law was to remedy a clear problem/mischief in the way the common law was developing in a particular area. it was assumed that Parliament would only legislate to correct this error of the common law.
28
the society our legal system serves is committed to certain outcomes in the interests of justice and ______________, and it will take a compelling argument for a judge
to give an interpretation of an ________________ word or phrase that is inconsistent with the wider legal _________ that underpin our society.
Fairness, Ambiguous, Values
29
in terms of democratic legitimacy, what does legitimacy mean?
acceptance of authority
30
In terms of democratic legitimacy, what does democracy mean?
rule by people
31
what does democratic legitimacy mean?
the idea that the authority of the Govt is accepted if it acts in a way that reflects the will of the people.
32
how does Parliament have democratic legitimacy?
because they are an elected body
33
are the courts democratically legitimate?
no - because they are appointed from an elite pool (not elected).
34
the courts will try and do certain things when interpreting legislation in order to appear more _________________ (and thus legitimate)
Democratic
35
statutory interpretation can affect the rights, liberties, ________ and obligations of _________________ in society.
Duties, Individuals
36
2 ways the courts can make their interpretive task appear more democratically legitimate
1. by following certain interpretive techniques that are designed to give effect to what Parliament meant when it enacted the legislation (e.g. adhering to the literal/purposive approach when giving meaning to an ambiguous word).
2. adhering to the wider legal values that underpin our legal system.
37
what are the 2 ways that TOW can influence statutory interpretation?
1. directly (statute expressly refers to the TOW by referencing principles of the Treaty).
2. indirectly (if there is a treaty or Te ao Maori dimension to the issue before the judge they should try to give the interpretation to be treaty consistent)
38
Tikanga Mãori is the ________ law in Aotearoa. it denotes the right way to behave and can be described as Maori lore and law.
First
39
Tikanga is a complete _________ system on its own.
Legal
40
What did the Ellis v R case state?
the SC recognised that Tikanga is part of the common law of NZ.
41
why is a legal interpretation that is consistent with Tikanga likely to be preferred by the Courts?
it shows respect to the wider legal values in our system.
42
as per s ___ of NZBORA, the courts will try give meaning to a word/phrase that is consistent with the ________ in NZBORA.
6, Rights
43
where possible, courts will interpret legislation in a way that is consistent with NZ's __________________ obligations, whether or not the ___________________ law is directly enforceable in our domestic law.
International, International
44
just because the statute
or provision does not
say anything specific about the Treaty/Tikanga/____________/international treaties etc does not mean that these things are ________________ to the judges interpretive task.
NZBORA, Irrelevent
45
If the statute itself is not enough to resolve the issue, the court can look at wider _____________ factors to try and figure out what the meaning of a provision is.
Contextual
46
what are the 2 categories of context?
1. wider legal context. 2. wider societal context
47
what are the sources of wider legal context?
1. legislative history.
2. analogous statutes from NZ or other jurisdiction.
3. analogous cases from NZ or other jurisdictions.
4. NZBORA.
5. Treaty of Waitangi.
6. international law.
48
As per s __ of the Legislation Act ______, an enactment applies to circumstances as they arrive.
11, 2019
49
what is the ambulatory approach?
we should be interpreting words in accordance with the modern understanding of that word, rather than restricting words to the meaning they would have had the day the legislation was enacted.
50
the word "document", using the Ambulatory approach, when legislation was created in the olden days might mean a piece of paper. how could we use the approach to give it a different meaning?
In a modern context, a document can mean emails, messages etc. the meaning of the word document has been expanded to include these new technological developments, but not through legislation, just interpretation. otherwise Parliament would have had to constantly amend legislation to keep up with the times.
51
case law can be treated as part of the wider __________. it is an indicative meaning from an _________________ source. the importance of case law may have more or less _________________ depend- ing on the facts of the case, the precise legal question addressed, and even the style of the legal reasoning adopted by the court.
Context, Authoritative, Relevance
52
stat interp: step 1?
does the Act apply, and is it in force?
53
stat interp: step 2
what elements need to be satisfied, and address the non-contentious elements.
54
stat interp: step 3
what are the contentious elements - identify the issue words; if words are different in the facts and legislation they probably need analysis.
55
stat interp: step 4
Marshall the arguments for 1 side
56
stat interp: step 5
marshall the elements for the other side
57
stat interp: step 6
identify the stronger element and think of penalties! (e.g. liability imposed would be too harsh because of the penalty, or too low etc)
58
at the end of the discussion for each element, you need to make a judgement call on what interpretation appears to be the most ______________.
Convincing
59
good ____________ argument > good ____________ argument > good _________ approach argument
Purpose, Context, Literal
60
a weak purpose argument may not be ____________ than a weak literal approach argument
Stronger
61
stat interp: step 7
overall conclusion
62
what relationship has human rights changed?
the relationship between the citizen and the state, began post WW2.
63
what is the purpose of human rights?
they purport that the citizen has certain freedoms which the state has a duty to protect
64
why are they called human rights?
because we enjoy the protection of human rights because of our shared humanity
65
what is the idea behind human rights?
he Government authority is NOT unlimited
66
in NZ, Parliament is supreme and we do not have a supreme ________________________
Constitution
67
3 ways the authority of the Govt is limited in NZ (human rights sit alongside these features)
1. The need for a democratic basis for legislative authority. 2 the principle of the separation of powers (which holds that each branch of Govt acts to check and balance the power used by the others).
3. the independence of the judiciary
68
human rights are an expression of ________________ govt and protecting citizens from _________ by the govt.
Limiting, Abuse
69
Rights are political _________ that the legal system responds to
Claims
70
Certain interests that someone has, should be ________________ in the ongoing political practice of Govt.
Privileged
71
sometimes, rights are so important that they present an absolute __________ to Govt action. but usually, the existence of these rights just means that they are important interests which should be taken into account and not unduly ______________ by the Govt unless there is a good ____________ to do so.
Barrier, Compromised, Reason
72
what sort of pressure attaches to the Parliament or Executive if they do something that breaches a right?
political pressure - no political party will take an anti-rights stance (this would be politically damaging) but some parties will indirectly do this. rights arguments can often be used on both sides of the same debate.
73
when rights (as political claims) are embedded in ________________, this makes the argument for them _____________ in the political debate.
Legislation, Stronger
74
rights are just political claims which have been put into _________________ - therefore there is a _____________ aspect when the courts are looking at it, even though the courts will often frame their thinking to appear in __________________ terms.
Legislation, Political, Legislative
75
3 ways the courts engage with rights?
1. they strive to give a rights-consistent interpretation to an ambiguous word/phrase they are interpreting.
2. they insist any Govt action
that breaches rights is PROPORTIONAL to the aims of that Govt action.
3. they have taken responsibility for CRAFTING APPROPRIATE REMEDIES where rights have been breached.
76
explain: the courts strive to give a rights-consistent interpretation to an ambiguous word/phrase they are interpreting.
at common law - this is known as the principle of legality. if there is an ambiguous/unclear piece of legislation, the courts will prefer the most rights-consistent meaning.
77
what is the principle of legality?
the courts strive to give a rights-consistent interpretation to an ambiguous word/phrase they are interpreting: at common law - this is known as the principle of legality. if there is an ambiguous/unclear piece of legislation, the courts will prefer the most rights-consistent meaning.
78
Lord Hoffman on the principle
of legality: "Parliament can, if it chooses, legislate _________ to fundamental principles of human _______. but the principle of legality means that parliament must squarely _________ what it is doing and accept the political cost....the courts therefore, presume that even the most general words were in- tended to be subject to the basic rights of the individual"
Contrary, rights, Confront
79
Why might a particularly bad breach of rights be justified?
if there is a significant and widespread benefit of the law that Parliament has enacted.
80
if a more rights-consistent course of action is reasonably available but was not adopted the courts may...
...intervene on the basis that the interference with the right was disproportional
81
what happens when the Executive (Govt) breaches rights? (Baigent)
financial compensation may be available
82
what happens when legislation breaches rights? (Taylor - what can the courts do)
the courts cannot refuse to apply such legislation, but they can issue a declaration of rights that have been breached.
83
does NZBORA create or affirm rights?
Affirm
84
NZBORA has a part where it states how the court should discharge
its __________________ task when legislation touches upon such basic values
Interpretive
85
what is in Part 1 of NZBORA?
a list of instructions for how we should think about rights
86
what is in Part 2 of NZBORA?
a list of the actual rights
87
can NZBORA be changed?
yes - it can be appealed, amended or repealed
88
what majority is needed to change NZBORA?
a majority, not even a super majority
89
what sort of statute is NZBORA?
NZBORA is an ordinary statute
90
what is feature 2 of NZBORA?
NZBORA expressly recognises Parliamentary Sovereignty
91
How does Parliament legislate to achieve a certain policy goal breach NZBORA? (2 ways)
inadvertently (because they over-looked an issue) or deliberately (because they think they policy goal is more important)
92
why is Parliament allowed to legislate in breach of NZBORA and what section is this highlighted under?
because Parliament is supreme - this is expressly retained in NZBORA s 4
93
why are we comfortable wth Parliament breaching some of our rights?
Parliament is viewed as a deliberate body which should be taking rights protection seriously.
94
what 2 institutional structures which help to ensure Parliament is taking rights seriously?
1. all proposed Bills are vetted by
the Attorney-General (AG) before being passed into law.
2. Legislation has to be applied and interpreted by the courts AND courts are subject to an interpretive obligation to presume that Parliament does not intend to breach rights in NZBORA (s 6)
95
what is feature 3 of NZBORA?
rights can be breached if there is a reasonable justification for doing so
96
we do not treat rights as absolute ________.
Limits
97
if there is a compelling ___________ for the Govt to enact legislation to affect a particular policy outcome that happens to breach a right in ___________, the Act allows this.
Reason, NZBORA
98
what is s 4 of NZBORA?
legislation can override rights
99
s __ of NZBORA is a ___________________ of parliamentary supremacy. if a law infringes on rights and is not demonstrably _____________, the most the court can do is issue a declaration outlining this inconsistency.
4, reaffirmation, justified
100
how does s 4 of NZBORA distinguish from a constitution centered jurisdiction?
the drafters of NZBORA did not want it to become a de facto constitution, therefore they added this provision to emphasise that courts cannot strike down legislation. this means legislation CAN breach rights.
101
what is the point of NZBORA if Parliament can breach it anyway?
Parliament is not the only body subject to NZBORA - also the Executive. and ss 5 and 6 are designed to operationalise NZBORA in a way that gives it some meaning, even if the judiciary can't strike down legislation.
102
41. Parliament is not the only body subject to NZBORA - also the _________________. and ss 5 and 6 are designed to operationalise NZBORA in a way that gives it some meaning, even if the judiciary can't strike down ________________.
Executive, Legislation
103
what is s 5 of NZBORA?
reasonable limits - rights may be subject to limits so long as those limits are "reasonable" and are able to be "demonstrably justified in a free and democratic society
104
what 2 things must infringements on the rights and freedoms in NZBORA must be per s 5?
1. "prescribed by law" (the limit set out in statute somewhere).
2. "demonstrably justified in a free and democratic society" (the breach of rights must be reasonable justified. this essentially means, given the politics we have/want to have, can/should we tolerate this limit on our fundamental rights?
105
s _ of NZBORA is saying that rights are not ______________. parliament may want to deliberately limit a right and they are legally entitled to do that if there is a good reason to do so.
5, Absolute
106
s 5 of NZBORA is the reason why NZBORA is sometimes called a "bill of ________________ rights". rights come with _______________ limits and NZBORA recognises this in s 5.
Reasonable, Reasonable
107
what is the consequence of s 5 of NZBORA?
blanket restrictions on rights are almost always unlawful, unless the legislation specifically says these rules will apply in all circumstances.
108
what is s 6 of NZBORA?
presumption of consistency
109
when an enactment can be given a meaning that is consistent with the rights and freedoms in NZBORA, then that meaning shall be _______________
over any other meaning. s 6 instructs judges to interpret statutes _____________________ with the rights of NZBORA where possible.
Preferred, Consistently
110
what does s 6 of NZBORA mean?
when an enactment can be given a meaning that is consistent with the rights and freedoms in NZBORA, then that meaning shall be preferred over any other meaning.
111
2 circumstances where the presumption of consistency may apply:
1. when the legislation is vague/ambiguous, the courts will prefer the most rights-consistent meaning.
2. even if the provision does not seem ambiguous, the courts may adopt a strained meaning/interpretation of the provision in order to give it a rights-consistent meaning. the court can be creative.
112
the justification for s 6 of NZBORA comes from the ________________ law principle of _____________ (s 6 being a statutory manifestation of this principle)
Common, Legality
113
if the Govt really wishes to take important rights away from the population, they should explicitly ________ what they are doing. that way the public can know exactly what the Govt is trying to
do and appropriately hold them to _____________.
State, Account
114
how do NZBORA 4, 5, 6 work together?
they work to contradict each other - and the order in which these provisions are meant to be considered is controversial because it can impact the outcome of a case.
115
how many steps in the Hansen test?
6
116
what is step 1 of the Hansen test?
first, the court will find Parliament's intended meaning of the word/phrase in question using the normal rules of statutory interpretation.
117
what is step 2 of the Hansen test?
second, the court will ascertain whether that meaning is inconsistent with a right in NZBORA. If not, then the court will apply that meaning.
118
what is step 3 of the Hansen test?
f that meaning of a word appears to infringe on a right in NZBORA, the court will consider whether that infringement is justified as per s 5.
119
what is step 4 of the Hansen test?
if Parliament's intended meaning is justified under s 5, then the courts will apply that meaning.
120
what is step 5 of the Hansen test?
if the breach CANNOT be justified in terms of s 5, then the court will undertake a s 6 analysis to see whether they can give the word/phrase a meaning that is more rights-consistent. if a more consistent meaning is available, the courts will adopt this meaning.
121
what is step 6 of the Hansen test?
if no alternative meaning is possible, then as per s 4, the courts are still required to apply the meaning that is unjustifiably breaching a right in NZBORA.
122
why is the Hansen test useful and how often do the courts use it?
the court will not use it every time, but it is a useful starting point for reading the sections 4, 5, 6 together.
123
what is an issue with the Hansen test?
it gives s 5 prominence over s 6.
124
why is this prominence between sections an issue in the Hansen test?
the court only gets to s 6 (presumption of consistency when an enactment can be given a meaning that is consistent with the rights and freedoms in NZBORA, then that meaning shall be preferred over any other meaning.) if they find that the infringement on the right cannot be justified.
125
the Hansen Test does not attempt to protect rights in the most _______________ way possible. it does make some effort towards rights protection, but only if those rights are ________________ given all that is considered in the justifiable limitation analysis. PROBLEM = the court may not get to s ___ at all.
Complete, Reasonable, 6
126
alternative perspective of the Hansen test: bringing the s 6 analysis in earlier - being with it, and then if no _______-______________ meaning is possible then see if the breach of rights is justified under s 5?
Rights-Consistent
127
basically the Hansen test: is it ______________ in terms of s 5, and if not, is there a way to give the word/phrase a meaning that is more rights-consistent in terms of s 6?
Justified
128
An alternative view: NZBORA is designed to foster a ___________ of rights consistent throughout the three branches of Govt. and if this is the case, then putting the s.
6 analysis at a step which may
not even take _______ (e.g. like how the Hansen test does it), is ______________.
Culture, Place, Problematic
129
if we favour an approach of a word that goes straight to the _______________ limitation section, we are robbing ourselves of the ____________________ that even if it is a justified limit,
there may have still been a different meaning that was more rights-_____________.
Justified, Opportunity, Consistent
130
does NZBORA have a provision outlining what happens when rights are breached?
NO
131
NZBORA, some people see it as simply an ___________________ of Parliament's will, therefore it is just a political _______________. therefore NZBORA sets out an authoritative list of political commitments, rather than any _________ commitments. a bill of "parliamentary" rights. contrasted to a "_____________________" bill of rights.
Expression, Statement, Legal, Constitutional
132
what is the idea behind the "Parliamentary" Bill of Rights?
Parliament is expressly empowered to legislate inconsistently with protected rights. so Parliament is the primary institution to protect us from breaches of our rights, and following this approach means that any judicial attempt to intervene and protect rights should be treated with skepticism.
133
what court was in charge of Baigent's case?
COA
134
what were the basic facts of Baigent's case?
the police had the wrong house for
a drug bust, even after they became aware of this, they had a look around anyway - they forcibly entered Baigent's home. she wanted damages for the right to be free from unreasonable search and seizure (a right in NZBORA).
135
why did the courts have to come up with a new solution to the right being breached in Baigent's case?
the usual remedy for a breach of un- reasonable search and seizure is that any evidence gathered is inadmissible at trial. but since there was no drug bust, this remedy was not available.
136
what was the issue of Baigent's case?
could the courts award damages for a breach of a right in NZBORA even though there is no provision for remedies in the statute?
137
what is the idea behind the "Parliamentary" Bill of Rights: Parliament is expressly empowered to legislate ___________________ with protected rights. so Parliament is the primary institution to ______________ us from breaches of our rights, and following this approach means that any judicial attempt to intervene and protect rights should be treated with _______________.
Inconsistently, Protect, Skepticism
138
what was the reasoning in Baigent's case?
the judge thought it would be odd to enact a statute like NZBORA unless there were meaningful consequences when breaches did occur. the Act implies that effective remedies SHOULD be available for its breach.
139
In Baigent's case, the judge
held that by leaving out any provision to do with remedies, Parliament was effectively ________________ the courts the authority to determine what remedy is __________________ in the circumstances.
Delegating, appropriate
140
what was the outcome of Baigent's case?
the court awarded Baigent damages, it wasn't much but it was symbolic more than anything.
141
the outcome of B_________'__ case showed how the court in this case was saying that in appropriate circumstances where the Govt has breached NZBORA, the court may, as a matter of discretion, award ____________.
Baigent's, Damages
142
2 ways bagient's case can be interpreted (outcomes)
1. when there is a breach in your rights, you can claim damages.
2. when there is a breach in your rights, the cops can fashion an appropriate remedy in the circumstances (damages, or something else)
143
if Parliament legislates inconsistent to the rights of _____________, we can assume its ____________________ because the AG is required to report to Parliament about the the rights-consistency of __________________.
NZBORA, Deliberate, legislation
144
why issue a declaration of inconsistency if it has no legal effect (Parliament is supreme)
because it has constitutional effect - the draw attention to the inconsistency and create a public and political impetus to address it.
145
when do the courts issue a declaration of inconsistency?
when legislation breaches a right of NZBORA that is also consistent with Parliamentary Supremacy.
146
the idea that rights are political _________ links to the idea of a declaration of inconsistency having a _______________________ effect as you will have a stronger political claim for re- pealing a piece of legislation if the courts have said that that legislation is fundamentally inconsistent with the rights our ___________ has chosen to protect.
Claims, Constitutional, Society
147
what has happened recently surrounding the idea of Parliament and DOI?
legislation has been passed to require Parliament to respond to DOIs when they are issued, although this does not necessarily mean the offending legislation will be repealed or amended.
148
what court was Attorny-General v Taylor
in?
New Zealand Supreme Court
149
what were the facts of Attorny-General v Taylor?
National Party led Govt enacted legislation that banned ALL prisoners from voting despite how long they were in prison (e.g. 3 weeks, 3 months when previously it was if you were in prison for more than till the next voting election), despite the AG flagging that the legislation breached a fundamental right of NZBORA - the right to vote (s 12)
150
what was the issue of Attorny-General v Taylor?
could the courts award a remedy for a breach of NZBORA through a piece of legislation, despite Parliament being supreme?
151
what was the outcome of Attorny-General v Taylor?
all 3 courts found, for the first time, that the courts can issue declarations of inconsistency where legislation unjustifiably breaches a right in NZBORA. this remedy does not conflict with Parliamentary supremacy because the legislation is still applied - it is just noted that the law is inconsistent.
152
what is freedom of expression?
FOE = a fundamental political right currently protected in most modern constitutional jurisdictions - often considered the most important right.
153
what does s 14 of NZBORA say about FOE?
"Everyone has the right to freedom of expression, including freedom to seek, receive, and impart information and opinions of any kind in any form."
154
is s 14 drafted broad or narrow?
very broad - in terms of access: "everyone", in terms of what the right is: "including:, in terms of what expression is: wider than speech - non verbal expression is included.
155
what is the first justification for protecting free speech? (an old and prominent justification for FOE)
protecting FOE enables the marketplace of ideas.
156
according to justification #1
for protecting FOE, there are ______/__________________ versions of the truth, but no one is individually best placed to understand what the truth is. therefore, we need to have a marketplace of different ________ for protecting free speech so we can find this truth.
Rival/Competing, Ideas
157
the marketplace full of ideas is a __________________ marketplace, where the exchanges of ideas reveals the _________. it acts as an arbiter of what is true and what is not. it decides what is true, not a ______________ decision-maker. on this account, FOE is _______________ for the truth to be revealed.
Metaphorical, Truth, Central, Necessary
158
FOE becomes a means of __________________ those who exercise power by ensuring that alternative perspectives are ______________.
Challenging, Available
159
what are manifestations of FOE?
dialogue, debate, fair competition among competing, alternative views.
160
what is a limitation to the market place of ideas? (Justification for FOE #1)
the modern marketplace for ideas is heavily curated and
it is arguable that the loudest or most powerful voice tends to win regardless of the actual truth.
161
what is the second justification for protecting free speech?
protecting FOE enables political contest - the right to FOE enables communication about important issues, which is necessary for political discussion.
162
why is political contest important for democracy?
because open debate and discussion allow the Govt to determine what the will of the people is, and to implement that will. it is therefore essential
163
Justification #2 for protecting free speech: open debate and discussion allow
the _____________________ to determine what the will of the ___________ is, and to implement that will. it is therefore essential that we can freely show our ________ and put our political views forward.
Govt, People, Ideas
164
what is the third justification for protecting free speech?
protecting FOE enables individual self-fulfilment - this justification recognises the value of FOE in its own right
165
Justification #3 for protecting free speech: we all want to live our lives the best way possible and we may want to do this by __________________ ourselves in different kinds of ways (art, news, things we say/do, music taste etc). sometimes others _______ _____ approve of this, but that is ok as we should still be allowed
to _____________ ourselves, because it al- lows us to live a full and dignified life.
Expressing, May Not, Express
166
what is the fourth justification for protecting free speech?
protecting FOE helps to pre- vent injustice - people need to feel they can speak up and investigate wrongdoing, or else we will not be able to fix injustices.
167
Justification #4 for protecting free speech: people need to feel they can __________ ____ and investigate wrongdoing, or else we will not be able to fix ______________. e.g. the ability for the news to freely investigate and report on activities that might be considered unfair or _________ allows for serious problems to be identified and then corrected.
Speak Up, Injustices, Unjust
168
is FOE absolute?
no - it should be limited in certain circumstances
169
_____________ FOE is always somewhat controversial because FOE is a right which is a political _________; people will always have different views about what is an appropriate and necessary _______ to FOE.
Limiting , Claim, Limit
170
what areas of FOE have legal limits?
copyright law, defamation, hate speech. (commonly accepted that they are not a big deal - FOE is not an excuse to breach the law in these areas^)
171
how is there social limits on FOE?
people may be criticised socially for saying offensive things - a social repercussion to expressing yourselves. this does not, technically prohibit you from expressing yourself, but people tend to tailor their behaviour and limit their expression as to not face social repercussions.
172
how is there govt imposted limits on FOE?
NZBORA through s 5, places an additional burden on the govt to demonstrate that any actions that may negatively impact FOE are reasonable and consistent with our own commitment as a nation to democracy.
173
in Morse v Police, what court?
NZ SC
174
in Morse v Police, what were the basic facts?
morse had burnt a NZ flat as part of an anti-war protest at the ANZAC Day Dawn Parade. Morse was charged with offensive behaviour.
175
in Morse v Police, what was the outcome?
the court noted that a reasonable person would recognise the right to protest (through FOE) through his actions and therefore not behaving in an offensive manner.
176
in Morse v Police, what did the courts say that the reasonable person would think?
the reasonable person is someone who takes a balanced, rights-sensitive view AND is, therefore, not unreasonably moved to wounded feelings or real anger, resentment, disgust or outrage, particularly when confronted by a protester.
177
in Pointon v Police, what was the court?
NZ HC
178
in Pointon v Police, what were the facts?
Pointon, a committed and genuine naturist, was seen running naked in a forest by a woman walking her dog, who complained. pontoon was arrested and charged with offensive behaviour.
179
what facts did Pointon say were just like the case Morse?
his behaviour (public nudity) was a form of expression, the public order was not disturbed, it was not sufficient that the complainant was annoyed or put out.
180
how did the prosecution try to distinguish
Pointon's case from Morse?
unlike Morse. here there was interference with the enjoyment of a public space, and there was no political audience for protest like in Morse.
181
what did the court in Pointon argue what an "expression" was?
that "expression" includes - not only the inoffensive, but the irritating, contentious, eccentric, heretical, the unwelcome and the provocative as long as it does not encourage violence.
182
The courts in Pointon emphasise that freedom only to speak ____________________ is not worth having.
Inoffensively
183
the __________________ approach that the Court refers to in Pointon v Police: "lap dancing, even in its more explicit form, is expression. we cannot...______________ human activity from the scope of the guaranteed free expression on the basis of the content or _______________ being conveyed. indeed, if the activity conveys or attempts to convey a meaning, it is _________________ content."
Canadian, Exclude, Meaning, Expressive
184
what is the Canadian approach that the Court refers to in Pointon v Police?
"lap dancing, even in its more explicit form, is expression. we cannot...exclude human activity from the scope of the guarantee free expression on the basis of the content or mean- ing being conveyed. indeed, if the activity conveys or attempts to convey a meaning, it is expressive content."
185
what case did the courts look to see if the nudity was offensive?
nude big riding was not offensive in Lowe v Police. the biking was on a quiet road, the offensive body parts were not clearly visible and the complainant was "concerned" not offended.
186
why did the courts feel that Lowe was essentially the same as Pointon?
pointon was alone, it was a quiet time of day and a reason- able person reason would not be offended. same as lowe, pointon was committed to be- ing nude but not deliberately showing off. SO, the court follows the same approach.
187
Just because people do not ______ what someone is expressing, does not mean that it is not expression and does not warrant __________________. If there is expression, there is something to be weight- ed in the balance. freedom of expression is a ________________ right.
Like, Protection, Protected
188
in Pointon, the Court determined that Pointon was _________________ something; he was drawing attention to an unusual lifestyle choice. the question in this case simply became whether that right is __________________ by the very concerns of public order decency.
Expressing, Outweighed
189
in both Lowe and Pointon, the defendants were _____________ to be seen by a large number of people. it would be a very ___________________ case if Pointon was walking slowly down a suburban street.
Unlikely, Different
190
what was the outcome in Pointon v Police?
Pointon was engaged in EXPRESSION and on balance this was not offensive behaviour.
191
Things to think about in Pointon v Police:
1. does the fact Pointon was not trying to of- fend anyone _________________ the polit- ical statement he was apparently making?
2. what is the _____________________ of the fact that Pointon was part of a "nudist community"?
3. if he was _____ intending for anyone to see his expression, is it re- ally expression?
4. if pointon was walk- ing around his house ____________, would that be expression?
5. above running, what is Pointon communicating?
6. why is park- ing a car not expression?
Downplay, Significance, not, Naked
192
Pointon's nudity was definitely self-_________________, but it is arguable that it was not a contribution to the "market place of ________" or political expression given the lack of audience.
Fulfilment, Ideas
193
what were the 2 things Mr Smith was arguing?
1. he was arguing that his FOE was not even taken into account.
2. he argued that had they taken his FOE into account they would have realised that wearing a wig was harm- less and it was just a way
he wanted to express himself. (important to note; no political statement was being made here)
194
in the case attorney-general v smith, what was the court?
COA
195
in the case attorney-general v smith, what were the facts?
Smith was a prisoner who sought permission to wear a wig to cover his bald head. when permission was denied, he claimed FOE. he recognised that FOE is NOT an absolute right, but was essentially arguing that his interest in self-expression had not been properly considered when making the decision to deny his request to wear a wig.
196
what were the 2 things Mr Smith was arguing?
1. he was arguing that his FOE was not even taken into account. 2. he argued that had they taken his FOE into account they would have realised that wearing a wig was harmless and it was just a way
he wanted to express himself. (important to note; no political statement was being made here)
197
what was the solicitor-general arguing in attorney-general v smith?
there was no expression
here because despite making Smith feel better, wearing a wig was not communicating any content or ideas and it was not sufficient that the complainant was annoyed/put out.
198
what 3 things did Smith argue that wearing a wig was expression?
1. self-esteem and confidence to engage the FOE.
2. response to the view of others.
3. expression as to physical form and personality
199
what was the issue in the case attorney-general v smith?
does Mr Smith's wearing of a wig amount to "expression"?
200
How did the COA distinguish attorney-general v smith with Pointon?
the CA framed Pointon in terms of the "political" expression he was engaged in...he was trying to make a point. trying to stand out and draw attention to himself, therefore there was some expression in his actions.
201
what did the COA find, in the case attorney-general v smith, the meaning of "expression"?
"expression" can be "as wide as human thought and imagination" - including non-verbal, symbolic conduct (as well as speech) BUT it does not include mindless utterances or sounds
202
what did the COA find, in the case attorney-general v smith, what the meaning of "expression" does NOT mean?
BUT it does not include mindless utterances or sounds
203
the COA in AG-Smith found that not all ____________ conduct will amount to expression, only that which conveys mean- ing to others. hairstyles CAN be expression but only if "they communicate nothing of meaning requiring _________________" . so the Court was ______ satisfied that Smith was conveying any meaning.
Human, Protection, NOT
204
what 4 things in the case AG-Smith, did the COA note was theoretical rationales for the protection of FOE?
1. the marketplace of ideas justification.
2. free speech.
3. human self-fulfilment (in the sense that intellectual and emotional development is facilitated by self-expression).
4. societal safety valve for public order.
205
4 things in the case AG-Smith that
the COA noted was theoretical rationales for the protection of FOE: 1. the _________________ of ideas justification. 2. free speech. 3. human self-fulfilment (in the sense that intellectual and emotion-
al ____________________ is facilitated by self-expression). 4. societal safety valve for ________ order.
Marketplace, Development, Public
206
in AG-Smith, the COA makes clear that all _______________ in the presence of others must provoke a reaction. e.g. a man drives his car on the road, other motorists see him and steer clear. his act of driving is not ___________________ expression, because no identifiable ________ or meaningful information is conveyed to anyone else.
Activity, Protected, Idea
207
Pointon's situation is very ___________________ if he was to put clothes on before leaving the forest to run home. he conveys no particular ______________ to anyone seeing him
Different, Meaning
208
"Acts whose rewards are confined to the actor's own ego may well enhance self-_______________, but they are not__________________, or the expression protected by s 14"
Fulfilment, Expression
209
there is no expression in reading Shake- speare unless you read Shakespeare __________. - "Reading Shakespeare
and Austen enhances self-fulfilment, but (absent public performance) its not _________________ (other than on the part of Shakespeare and Austen respectively)"
Aloud, Expression
210
"behaviour communicating nothing of ______________ should not, in our view, _____________ s 14 rights analysis and s 5 balancing process that would follow. no fundamental ______________ contained in NZBORA is engaged."
Meaning, Engage, Freedom
211
what was the outcome of AG-Smith?
the court found that because no meaning was being conveyed by Smith's wearing of a wig, this wasn to enough
to amount to expression and therefore engage the s 14 right - it was not enough that people may have viewed Smith differently.
212
the key point of AG-Smith is that NOT
ALL HUMAN _________________ IS PRIMA FACIE EXPRESSION - despite the arguable benefits for human ______ -fulfilment (the courts did note themselves), the courts held that expression must have a _______________; it must attempt to con- vey a meaning.
Conduct, Self, Purpose
213
the judgement in AG-Smith should not
be taken as saying hairstyles don't communicate anything; rather the court said ___________ ______, hairstyles do not communicate anything and therefore do not engage _____. one of the implications of this decision is that if you are doing something in line with mainstream norms, you may not attract _________________ for FOE.
Without more, FOE, Protection
