HANSEN APPROACH Flashcards
what is s 6 of BORA?
interpretation consistent with BORA preferred.
what is s 5 of BORA?
justified limitations - demonstrably justified in a free and democratic society.
what is s 4 of BORA?
other enactments not affected - parliament is supreme.
what is the order of the BORA sections in the Hansen Approach?
s 5
s 6
s 4
what is step 1 of the Hansen Approach?
identify the natural meaning of the legislation.
what is step 2 of the Hansen Approach?
is there an inconsistency with a right or freedom? if not, adopt the natural meaning.
what is step 3 of the Hansen Approach?
if there is an inconsistency, is it justifiable (under s 5)?
what is step 4 of the Hansen Approach?
if it is justifiable, adopt the natural meaning.
what is step 5 of the Hansen Approach?
if not justifiable, consider a meaning that does not unreasonably limit the right or freedom if available (required by s 6).
what is step 6 of the Hansen Approach?
if so, adopt it. if not, adopt the natural meaning.
in what step of the Hansen Approach does the Oakes test come in?
step 3.
what is step 1 of the Oakes test/proportionality inquiry?
does the limit pursue a sufficiently important objective to warrant overriding a protected right?
what is step 2 of the Oakes test?
is the means chosen to achieve the objective proportional?
how do you determine step 2 of the Oakes test/proportionality inquiry?
a) rational connection between limit and objective?
b) right impaired as little as reasonably possible?
c) is the limitation proportional to the objection pursued?
what is Tipping J’s dictum in Oakes?
“a sledgehammer should not be used to crack a nut”.
