A Part 2 - Mack

Question 1

what are the 4 steps to find the meaning of an ambiguous word?

Answer 1

1. isolate the ambiguous word.
2. 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.
3. conclude on what argument the court is more likely to be satisfied with.

Question 2

what does “unless the context otherwise requires” mean if said in
a statute about the definition of a word?

Answer 2

it means that the court is not bound to that decision.

Question 3

why does the interpreter must stick to a definition of a word if it is defined in a statute?

Answer 3

because the definition shows clearly what Parliament means to encompass with that word.

Question 4

what is the definition of “means” in stat interp?

Answer 4

means is an exhaustive term, which is closed, meaning that what follows in the statute is all the possibilities that Parliament meant to cover.

Question 5

why will Parliament use the word “includes” to frame a sentence in a statute?

Answer 5

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.

Question 6

what is the definition of “includes” in stat interp?

Answer 6

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.

Question 7

what does the word “and” mean in stat interp?

Answer 7

“and” is conjunctive”, meaning both X and Y are necessary to establish liability under the statute

Question 8

what does the word “or” mean in stat interp?

Answer 8

“or” is dis-conjunctive, meaning either X or Y is necessary to establish liability under the statute

Question 9

what is the definition of the words “shall” and “must” in stat interp?

Answer 9

“shall” and “must” are mandatory, meaning that the duty must be performed

Question 10

what is the definition of the word “may” in stat interp?

Answer 10

“may” is directory, meaning that the power or permission may be exercised, but it need not be.

Question 11

what does Noscitur a Sociis mean?

Answer 11

words are known by the company they keep e.g. a word can take its meaning from the other words that surround it.

Question 12

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 _______________.

Answer 12

Limit, Literal, meaning

Question 13

the words “shoot, stab, cut or wound” mean what in regards to the word “wound”?

Answer 13

“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.

Question 14

what does Ejusdem Generis mean?

Answer 14

a general word is of the same kind as surround specific words

Question 15

how does Ejusdem Generis narrow the literal meaning?

Answer 15

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.

Question 16

what are the 4 requirements for the use of ejusedem generis?

Answer 16

1. specific words must belong to an identifiable class.
2. the specific words cannot exhaust the class.
3. there must be more than one specific word.
4. the purpose of the legislation must not be defeated.

Question 17

how could ejusdem generis be used for the words “banner, placard, poster or other sign”

Answer 17

“other sign” is a potentially quite an expansive term, but it could be representing a class of written communication.

Question 18

what does Expressio unius est exclusio alterius mean?

Answer 18

the expression of one thing is another express inclusions are implied exclusions

Question 19

the statement “children under 12 admitted free” when using Expresso units, shows a clear inference that:

Answer 19

children above the age of 12 must pay

Question 20

how could expresso units be used in a list of words? think mine example…

Answer 20

“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.

Question 21

what does Generalia Specialibus non Derogant mean?

Answer 21

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.

Question 22

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.”

Answer 22

10, purpose

Question 23

what is the plain/literal approach?

Answer 23

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.

Question 24

why do courts like to use the literal approach?

Answer 24

It means that the law is certain and predictable to the layman which up- holds the ROL.

Question 25

what is the Golden Rule?

Answer 25

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!

Question 26

what is the purposive approach?

Answer 26

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?

Question 27

what is the mischief approach and its history? and was was assumed that Parliament would do?

Answer 27

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.

Question 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.

Answer 28

Fairness, Ambiguous, Values

Question 29

in terms of democratic legitimacy, what does legitimacy mean?

Answer 29

acceptance of authority

Question 30

In terms of democratic legitimacy, what does democracy mean?

Answer 30

rule by people

Question 31

what does democratic legitimacy mean?

Answer 31

the idea that the authority of the Govt is accepted if it acts in a way that reflects the will of the people.

Question 32

how does Parliament have democratic legitimacy?

Answer 32

because they are an elected body

Question 33

are the courts democratically legitimate?

Answer 33

no - because they are appointed from an elite pool (not elected).

Question 34

the courts will try and do certain things when interpreting legislation in order to appear more _________________ (and thus legitimate)

Answer 34

Democratic

Question 35

statutory interpretation can affect the rights, liberties, ________ and obligations of _________________ in society.

Answer 35

Duties, Individuals

Question 36

2 ways the courts can make their interpretive task appear more democratically legitimate

Answer 36

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.

Question 37

what are the 2 ways that TOW can influence statutory interpretation?

Answer 37

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)

Question 38

Tikanga Mãori is the ________ law in Aotearoa. it denotes the right way to behave and can be described as Maori lore and law.

Answer 38

First

Question 39

Tikanga is a complete _________ system on its own.

Answer 39

Legal

Question 40

What did the Ellis v R case state?

Answer 40

the SC recognised that Tikanga is part of the common law of NZ.

Question 41

why is a legal interpretation that is consistent with Tikanga likely to be preferred by the Courts?

Answer 41

it shows respect to the wider legal values in our system.

Question 42

as per s ___ of NZBORA, the courts will try give meaning to a word/phrase that is consistent with the ________ in NZBORA.

Answer 42

6, Rights

Question 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.

Answer 43

International, International

Question 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.

Answer 44

NZBORA, Irrelevent

Question 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.

Answer 45

Contextual

Question 46

what are the 2 categories of context?

Answer 46

1. wider legal context. 2. wider societal context

Question 47

what are the sources of wider legal context?

Answer 47

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.

Question 48

As per s __ of the Legislation Act ______, an enactment applies to circumstances as they arrive.

Answer 48

11, 2019

Question 49

what is the ambulatory approach?

Answer 49

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.

Question 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?

Answer 50

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.

Question 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.

Answer 51

Context, Authoritative, Relevance

Question 52

stat interp: step 1?

Answer 52

does the Act apply, and is it in force?

Question 53

stat interp: step 2

Answer 53

what elements need to be satisfied, and address the non-contentious elements.

Question 54

stat interp: step 3

Answer 54

what are the contentious elements - identify the issue words; if words are different in the facts and legislation they probably need analysis.

Question 55

stat interp: step 4

Answer 55

Marshall the arguments for 1 side

Question 56

stat interp: step 5

Answer 56

marshall the elements for the other side

Question 57

stat interp: step 6

Answer 57

identify the stronger element and think of penalties! (e.g. liability imposed would be too harsh because of the penalty, or too low etc)

Question 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 ______________.

Answer 58

Convincing

Question 59

good ____________ argument > good ____________ argument > good _________ approach argument

Answer 59

Purpose, Context, Literal

Question 60

a weak purpose argument may not be ____________ than a weak literal approach argument

Answer 60

Stronger

Question 61

stat interp: step 7

Answer 61

overall conclusion

Question 62

what relationship has human rights changed?

Answer 62

the relationship between the citizen and the state, began post WW2.

Question 63

what is the purpose of human rights?

Answer 63

they purport that the citizen has certain freedoms which the state has a duty to protect

Question 64

why are they called human rights?

Answer 64

because we enjoy the protection of human rights because of our shared humanity

Question 65

what is the idea behind human rights?

Answer 65

he Government authority is NOT unlimited

Question 66

in NZ, Parliament is supreme and we do not have a supreme ________________________

Answer 66

Constitution

Question 67

3 ways the authority of the Govt is limited in NZ (human rights sit alongside these features)

Answer 67

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).
2. the independence of the judiciary

Question 68

human rights are an expression of ________________ govt and protecting citizens from _________ by the govt.

Answer 68

Limiting, Abuse

Question 69

Rights are political _________ that the legal system responds to

Answer 69

Claims

Question 70

Certain interests that someone has, should be ________________ in the ongoing political practice of Govt.

Answer 70

Privileged

Question 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.

Answer 71

Barrier, Compromised, Reason

Question 72

what sort of pressure attaches to the Parliament or Executive if they do something that breaches a right?

Answer 72

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.

Question 73

when rights (as political claims) are embedded in ________________, this makes the argument for them _____________ in the political debate.

Answer 73

Legislation, Stronger

Question 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.

Answer 74

Legislation, Political, Legislative

Question 75

3 ways the courts engage with rights?

Answer 75

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.

Question 76

explain: the courts strive to give a rights-consistent interpretation to an ambiguous word/phrase they are interpreting.

Answer 76

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.

Question 77

what is the principle of legality?

Answer 77

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.

Question 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”

Answer 78

Contrary, rights, Confront

Question 79

Why might a particularly bad breach of rights be justified?

Answer 79

if there is a significant and widespread benefit of the law that Parliament has enacted.

Question 80

if a more rights-consistent course of action is reasonably available but was not adopted the courts may…

Answer 80

…intervene on the basis that the interference with the right was disproportional

Question 81

what happens when the Executive (Govt) breaches rights? (Baigent)

Answer 81

financial compensation may be available

Question 82

what happens when legislation breaches rights? (Taylor - what can the courts do)

Answer 82

the courts cannot refuse to apply such legislation, but they can issue a declaration of rights that have been breached.

Question 83

does NZBORA create or affirm rights?

Answer 83

Affirm

Question 84

NZBORA has a part where it states how the court should discharge
its __________________ task when legislation touches upon such basic values

Answer 84

Interpretive

Question 85

what is in Part 1 of NZBORA?

Answer 85

a list of instructions for how we should think about rights

Question 86

what is in Part 2 of NZBORA?

Answer 86

a list of the actual rights

Question 87

can NZBORA be changed?

Answer 87

yes - it can be appealed, amended or repealed

Question 88

what majority is needed to change NZBORA?

Answer 88

a majority, not even a super majority

Question 89

what sort of statute is NZBORA?

Answer 89

NZBORA is an ordinary statute

Question 90

what is feature 2 of NZBORA?

Answer 90

NZBORA expressly recognises Parliamentary Sovereignty

Question 91

How does Parliament legislate to achieve a certain policy goal breach NZBORA? (2 ways)

Answer 91

inadvertently (because they over-looked an issue) or deliberately (because they think they policy goal is more important)

Question 92

why is Parliament allowed to legislate in breach of NZBORA and what section is this highlighted under?

Answer 92

because Parliament is supreme - this is expressly retained in NZBORA s 4

Question 93

why are we comfortable wth Parliament breaching some of our rights?

Answer 93

Parliament is viewed as a deliberate body which should be taking rights protection seriously.

Question 94

what 2 institutional structures which help to ensure Parliament is taking rights seriously?

Answer 94

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)

Question 95

what is feature 3 of NZBORA?

Answer 95

rights can be breached if there is a reasonable justification for doing so

Question 96

we do not treat rights as absolute ________.

Answer 96

Limits

Question 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.

Answer 97

Reason, NZBORA

Question 98

what is s 4 of NZBORA?

Answer 98

legislation can override rights

Question 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.

Answer 99

4, reaffirmation, justified

Question 100

how does s 4 of NZBORA distinguish from a constitution centered jurisdiction?

Answer 100

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.

Question 101

what is the point of NZBORA if Parliament can breach it anyway?

Answer 101

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.

Question 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 ________________.

Answer 102

Executive, Legislation

Question 103

what is s 5 of NZBORA?

Answer 103

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

Question 104

what 2 things must infringements on the rights and freedoms in NZBORA must be per s 5?

Answer 104

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?

Question 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.

Answer 105

5, Absolute

Question 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.

Answer 106

Reasonable, Reasonable

Question 107

what is the consequence of s 5 of NZBORA?

Answer 107

blanket restrictions on rights are almost always unlawful, unless the legislation specifically says these rules will apply in all circumstances.

Question 108

what is s 6 of NZBORA?

Answer 108

presumption of consistency

Question 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.

Answer 109

Preferred, Consistently

Question 110

what does s 6 of NZBORA mean?

Answer 110

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.

Question 111

2 circumstances where the presumption of consistency may apply:

Answer 111

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.

Question 112

the justification for s 6 of NZBORA comes from the ________________ law principle of _____________ (s 6 being a statutory manifestation of this principle)

Answer 112

Common, Legality

Question 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 _____________.

Answer 113

State, Account

Question 114

how do NZBORA 4, 5, 6 work together?

Answer 114

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.

Question 115

how many steps in the Hansen test?

Answer 115

6

Question 116

what is step 1 of the Hansen test?

Answer 116

first, the court will find Parliament’s intended meaning of the word/phrase in question using the normal rules of statutory interpretation.

Question 117

what is step 2 of the Hansen test?

Answer 117

second, the court will ascertain whether that meaning is inconsistent with a right in NZBORA. If not, then the court will apply that meaning.

Question 118

what is step 3 of the Hansen test?

Answer 118

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.

Question 119

what is step 4 of the Hansen test?

Answer 119

if Parliament’s intended meaning is justified under s 5, then the courts will apply that meaning.

Question 120

what is step 5 of the Hansen test?

Answer 120

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.

Question 121

what is step 6 of the Hansen test?

Answer 121

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.

Question 122

why is the Hansen test useful and how often do the courts use it?

Answer 122

the court will not use it every time, but it is a useful starting point for reading the sections 4, 5, 6 together.

Question 123

what is an issue with the Hansen test?

Answer 123

it gives s 5 prominence over s 6.

Question 124

why is this prominence between sections an issue in the Hansen test?

Answer 124

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.

Question 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.

Answer 125

Complete, Reasonable, 6

Question 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?

Answer 126

Rights-Consistent

Question 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?

Answer 127

Justified

Question 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 ______________.

Answer 128

Culture, Place, Problematic

Question 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-_____________.

Answer 129

Justified, Opportunity, Consistent

Question 130

does NZBORA have a provision outlining what happens when rights are breached?

Answer 130

NO

Question 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.

Answer 131

Expression, Statement, Legal, Constitutional

Question 132

what is the idea behind the “Parliamentary” Bill of Rights?

Answer 132

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.

Question 133

what court was in charge of Baigent’s case?

Answer 133

COA

Question 134

what were the basic facts of Baigent’s case?

Answer 134

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).

Question 135

why did the courts have to come up with a new solution to the right being breached in Baigent’s case?

Answer 135

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.

Question 136

what was the issue of Baigent’s case?

Answer 136

could the courts award damages for a breach of a right in NZBORA even though there is no provision for remedies in the statute?

Question 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 _______________.

Answer 137

Inconsistently, Protect, Skepticism

Question 138

what was the reasoning in Baigent’s case?

Answer 138

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.

Question 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.

Answer 139

Delegating, appropriate

Question 140

what was the outcome of Baigent’s case?

Answer 140

the court awarded Baigent damages, it wasn’t much but it was symbolic more than anything.

Question 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 ____________.

Answer 141

Baigent’s, Damages

Question 142

2 ways bagient’s case can be interpreted (outcomes)

Answer 142

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)

Question 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 __________________.

Answer 143

NZBORA, Deliberate, legislation

Question 144

why issue a declaration of inconsistency if it has no legal effect (Parliament is supreme)

Answer 144

because it has constitutional effect - the draw attention to the inconsistency and create a public and political impetus to address it.

Question 145

when do the courts issue a declaration of inconsistency?

Answer 145

when legislation breaches a right of NZBORA that is also consistent with Parliamentary Supremacy.

Question 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.

Answer 146

Claims, Constitutional, Society

Question 147

what has happened recently surrounding the idea of Parliament and DOI?

Answer 147

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.

Question 148

what court was Attorny-General v Taylor
in?

Answer 148

New Zealand Supreme Court

Question 149

what were the facts of Attorny-General v Taylor?

Answer 149

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)

Question 150

what was the issue of Attorny-General v Taylor?

Answer 150

could the courts award a remedy for a breach of NZBORA through a piece of legislation, despite Parliament being supreme?

Question 151

what was the outcome of Attorny-General v Taylor?

Answer 151

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.

Question 152

what is freedom of expression?

Answer 152

FOE = a fundamental political right currently protected in most modern constitutional jurisdictions - often considered the most important right.

Question 153

what does s 14 of NZBORA say about FOE?

Answer 153

“Everyone has the right to freedom of expression, including freedom to seek, receive, and impart information and opinions of any kind in any form.”

Question 154

is s 14 drafted broad or narrow?

Answer 154

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.

Question 155

what is the first justification for protecting free speech? (an old and prominent justification for FOE)

Answer 155

protecting FOE enables the marketplace of ideas.

Question 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.

Answer 156

Rival/Competing, Ideas

Question 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.

Answer 157

Metaphorical, Truth, Central, Necessary

Question 158

FOE becomes a means of __________________ those who exercise power by ensuring that alternative perspectives are ______________.

Answer 158

Challenging, Available

Question 159

what are manifestations of FOE?

Answer 159

dialogue, debate, fair competition among competing, alternative views.

Question 160

what is a limitation to the market place of ideas? (Justification for FOE #1)

Answer 160

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.

Question 161

what is the second justification for protecting free speech?

Answer 161

protecting FOE enables political contest - the right to FOE enables communication about important issues, which is necessary for political discussion.

Question 162

why is political contest important for democracy?

Answer 162

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

Question 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.

Answer 163

Govt, People, Ideas

Question 164

what is the third justification for protecting free speech?

Answer 164

protecting FOE enables individual self-fulfilment - this justification recognises the value of FOE in its own right

Question 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.

Answer 165

Expressing, May Not, Express

Question 166

what is the fourth justification for protecting free speech?

Answer 166

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.

Question 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.

Answer 167

Speak Up, Injustices, Unjust

Question 168

is FOE absolute?

Answer 168

no - it should be limited in certain circumstances

Question 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.

Answer 169

Limiting , Claim, Limit

Question 170

what areas of FOE have legal limits?

Answer 170

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^)

Question 171

how is there social limits on FOE?

Answer 171

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.

Question 172

how is there govt imposted limits on FOE?

Answer 172

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.

Question 173

in Morse v Police, what court?

Answer 173

NZ SC

Question 174

in Morse v Police, what were the basic facts?

Answer 174

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.

Question 175

in Morse v Police, what was the outcome?

Answer 175

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.

Question 176

in Morse v Police, what did the courts say that the reasonable person would think?

Answer 176

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.

Question 177

in Pointon v Police, what was the court?

Answer 177

NZ HC

Question 178

in Pointon v Police, what were the facts?

Answer 178

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.

Question 179

what facts did Pointon say were just like the case Morse?

Answer 179

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.

Question 180

how did the prosecution try to distinguish
Pointon’s case from Morse?

Answer 180

unlike Morse. here there was interference with the enjoyment of a public space, and there was no political audience for protest like in Morse.

Question 181

what did the court in Pointon argue what an “expression” was?

Answer 181

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.

Question 182

The courts in Pointon emphasise that freedom only to speak ____________________ is not worth having.

Answer 182

Inoffensively

Question 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.”

Answer 183

Canadian, Exclude, Meaning, Expressive

Question 184

what is the Canadian approach that the Court refers to in Pointon v Police?

Answer 184

“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.”

Question 185

what case did the courts look to see if the nudity was offensive?

Answer 185

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.

Question 186

why did the courts feel that Lowe was essentially the same as Pointon?

Answer 186

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.

Question 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.

Answer 187

Like, Protection, Protected

Question 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.

Answer 188

Expressing, Outweighed

Question 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.

Answer 189

Unlikely, Different

Question 190

what was the outcome in Pointon v Police?

Answer 190

Pointon was engaged in EXPRESSION and on balance this was not offensive behaviour.

Question 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?

Answer 191

Downplay, Significance, not, Naked

Question 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.

Answer 192

Fulfilment, Ideas

Question 193

what were the 2 things Mr Smith was arguing?

Answer 193

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)

Question 194

in the case attorney-general v smith, what was the court?

Answer 194

COA

Question 195

in the case attorney-general v smith, what were the facts?

Answer 195

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.

Question 196

what were the 2 things Mr Smith was arguing?

Answer 196

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)

Question 197

what was the solicitor-general arguing in attorney-general v smith?

Answer 197

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.

Question 198

what 3 things did Smith argue that wearing a wig was expression?

Answer 198

1. self-esteem and confidence to engage the FOE.
2. response to the view of others.
3. expression as to physical form and personality

Question 199

what was the issue in the case attorney-general v smith?

Answer 199

does Mr Smith’s wearing of a wig amount to “expression”?

Question 200

How did the COA distinguish attorney-general v smith with Pointon?

Answer 200

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.

Question 201

what did the COA find, in the case attorney-general v smith, the meaning of “expression”?

Answer 201

“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

Question 202

what did the COA find, in the case attorney-general v smith, what the meaning of “expression” does NOT mean?

Answer 202

BUT it does not include mindless utterances or sounds

Question 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.

Answer 203

Human, Protection, NOT

Question 204

what 4 things in the case AG-Smith, did the COA note was theoretical rationales for the protection of FOE?

Answer 204

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.

Question 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.

Answer 205

Marketplace, Development, Public

Question 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.

Answer 206

Activity, Protected, Idea

Question 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

Answer 207

Different, Meaning

Question 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”

Answer 208

Fulfilment, Expression

Question 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)”

Answer 209

Aloud, Expression

Question 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.”

Answer 210

Meaning, Engage, Freedom

Question 211

what was the outcome of AG-Smith?

Answer 211

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.

Question 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.

Answer 212

Conduct, Self, Purpose

Question 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.

Answer 213

Without more, FOE, Protection