Human Rights

Question 1

What is the purpose of the Human Rights Module?

Answer 1

Recognise and articulate how human rights operate within a legal system.

Question 2

What are “human rights”?

Answer 2

How academics describe human rights?

Rights for humans? What about animals? Do corporations have human rights?

Every right that a human has?

Some special kind of right? Something moral? Something that the law takes more seriously than other kinds of rights? If so, why?

A legal category, just like a right under a contract, or a right to damages in tort law? Just a label?

How do we “get” human rights? Where do they come from? Nature, the state? Do we only have human rights because the state gives us human rights?

Human rights as a theoretical concept. There might be different ways of describing human rights.

And later we will talk about human rights in a legal context in NZ.

• Human rights in general are a part of public law so its between the relationship between the individual and the state. Sometimes human rights can have an impact on the relationships of private individuals and thats through the application of law.

So this is a little bit complicated but for example The Courts, because the Courts are part of the state the Courts have to uphold our human rights. And that mean that the law the Courts apply between private individuals is affected by human rights concepts.

But in general we are talking about public law and the relationship between the state and the individual.

Question 3

The nature of human rights?

Answer 3

• Absolute? Can never be limited, common law legal systems you can never torture, it is absolute you can never justify torture.
• Qualified? Rights that can be limited. For example freedom of expression. If the speech the person is doing it can incite violence we might limit that speech in that particular instance.

How do we balance rights with each other. Whose right trumps the other or wins out. The person who needs to express themselves or the person who has a right not to be harmed by the speech. We think about balancing in that instance.

• Absolute means that right should always win over other rights but you can have conflict over absolute rights that can be difficult.
• If you see human rights as being absolute at the same time you may see human rights as inalienable. So inalienable rights means you cant take them away. So you can’t waive them, where you can’t give up the right and the state can’t take them away.

So torture for example. You cannot consent to being tortured and the state cant take away your right to be free from torture.

But there are some rights that you can waive so for example if you are arrested you have a right to take to a lawyer. So if you are in the police station, you’ve been arrested you have the right to take to a lawyer. But you can if you make a voluntary informed decision, you can say no I don’t want to talk to a lawyer. You can waive your right to a lawyer. So thats an example to a right that can be waived.

So you can waive your right to legal advice and there are are rights that the state can take away. So punishment and the most serious kind of punishment you can have in NZ is punishment, So if the state after you have been convicted sentences you to be imprisoned for a period of time the state has limited or take away your right to freedom of movement. So we all have a right to freedom of movement which just means to go where we want with reason to go around the country but if they are in prison there right to freedom of movement has been taken away because they can’t leave the prison.

Question 4

What are the Elements of the Gafkin case from Germany?

Answer 4

Facts:

• There was a man called Gafkin and Gafkin had kidnapped a young boy.
• And that young boy, the police didn’t know where he was the police thought he was alive and they thought he was in danger somewhere didn’t know where he was.
• They had Gafkin in the police station and the police wanting to find that young boy and save him from harm so protect his right to life and they have Gafkin in the police station.
• And so what the police did in this instance in Germany was they threatened Gafkin that they were going to torture him if he didn’t tell him where the young boy was.
• And so they told him that they would do all sorts of horrible things to him and eventually he was so frightened that he did tell them where the young boy was.
• And the boy was already dead.

Decision:

• So the case is about whether there was a violation of Gafkins right to be free from torture
• And the answer was yes there was a violation of Gafkins right to be free from torture because although the state might have had good aims .
• So the aim of saving the young boy which we can all sympathise with.
• They are not allowed to just do anything in order to save the young boy they are not allowed to torture or threaten to torture Mr Gafkin in order to save the young boy.

Its a really difficult case because we can all understand if they think the boy is alive they might want to do whatever they can to save that boy but Gafkin has the right to be free from torture.

• So the state Germany had violated his right by threatening to torture him to find out where the young boy was.
• So part of human rights law is deciding how we balance these kinds of things in really difficult cases.

Question 5

Justifications for Human Rights?

Answer 5

The justifications that we use are going to be interrelated with our view as to what human rights actually are.

And how we justify human rights matters because that might be how we assess whether human rights are achieving their purposes. We might assess them against the justifications and see whether they are actually doing what it is that we say they’re justified to do.

• Instrumental Justifications

If we view human rights as rights that all human beings have as a consequence of being human, thats a natural view of human rights.

• The justification then is that they protect certain valued features if humanity.

So we might view human rights justifications in terms of instrumental justifications, so we might say the existence if human rights is justified. We may have different views of what the valued features are. Agency of human beings, choice, ability to make decisions (agency), dignity,

-another instrumental justification is that human rights protect the basic things of human need for life. Right to life, right to food, right to clean water. Minimum standard.

If we take that view, then that doesn’t actually match up entirely with the human rights that we have as a legal ideas and thats because there are some things we have as rights such as rights we have in the NZBORA which are civil and political rights, so a right to equality before the law or a right to a fair trial. We may not say these are the basic things for every person. We could say a right to a fair trial is a basic need of a person. But that is different in quality from saying a right to life, a right to water, a right to food.

Political justifications:

These see rights generated within specific practice of states at the international level.

• These kinds of justifications Raz says human rights exist to make states answerable to the international community for their treatment of individual people. So states are made answerable to each other for how they treat people within their jurisdiction.
• Or perhaps human rights are just limits on what state can so to us. So political conceptions of human rights.

These political views can be criticised. If you take a natural view then we may have an objection to this.

There are conflicting ideas here.

Human rights are ideals they establish standards of conduct to which various agents normally the state are meant to conform.

They may be natural rights when we are born because we are human or they might be rights with some special moral quality or they might be rights that the state gives us and then takes away or gives us and makes difficult for them to take the rights away.

Question 6

Critiques of human rights?

Answer 6

We all believe human rights should exist but there are critiques of the human rights projects.

Simplified critiques:

• Realist Critiques.

Think that human rights are not above the state not moral or special anything like that human rights are from the states and can take them away no natural rights connotation if we are a realist then we have human rights because the state lets us. So human rights are not absolute and are not inalienable if we are realists. So realist would be critical of any other person who have rights which gives them a special status.

• Utilitarian critiques
  Oppose the granting of human rights regardless of the consequences for common good. Moral theory about choosing outcomes that promote the greatest good. We should all have the same human rights and not all automatically have human rights there might be a way that has the greatest amount of good which doesn’t give human rights to everybody.
• Marxist critiques

Marxists would be that human rights are used to sustain the privileged class, so critique on the basis that human rights can be used as a tool to sustain privilege.

Basic level of housing etc.

• Particularist (cultural relativist) critiques

Cultural relativists think that it is wrong to say that human rights are universal and that it is wrong to say that human rights are universal and that they are the same across all cultures. So they see human rights as imperialist they are the product of the society that created human rights. Potentially a very western background. Inherently western and individualistic some cultures value individuals and groups more than individuals.

• Feminist Critiques

A feminist critique of human rights some feminists not all some feminists criticised the emphasis of human rights on equality and neutrality so they point out that generally human rights are defined by men they have historically generally been defined by men, bypassing interests and concerns for women. And so feminists might debate the idea that human rights are gender neutral.

• Others?

There are a whole host of other ways to criticise human rights. So the point here is just to think about human rights realistically not necessarily as realists but realistically are not necessarily the be all and end all their can be problems with human rights many of these criticisms will be valid criticisms.

Human rights is good but there are ways we can criticise human rights.

What are the alternatives? Just because there might be some problems with it and the way they are enforced that doesn’t mean that we necessarily do away with the whole idea of human rights because what do we replace it with if we are trying to improve and progress society.

So we take these criticisms to improve human rights.

Question 7

Origins of Modern Human rights.

Answer 7

The origins of modern human rights come very much from World War two.

So there were declarations or statements of rights before the things below so Declaration of the Rights of Man in 1789 in France to do with the french revolution.

Declaration of independence in America and the associated bill of rights.

But these earlier documents were rights for specific groups of people so usually men, usually white men who own property. So not universal rights.

When we get the to the post World War Two period, this is when we get the focus on universal rights so rights for everybody regardless of who we are, regardless of who the person is.

So the big ideas coming out of this period are that all humans have the same rights that doesn’t sound like a big deal now but it was a big deal at this time coming directly out of WW2.

At this time is very much the idea that Human Rights are based on dignity, dignity if the person, dignity being core to us all. And that rights not rulers should be the heart of society.

So very much in response to the Holocaust, Genocide, the terrible things that happened in WW2 and earlier WW1. The great depression that was happening very much a response to what was happening in the early first half of the 20th century we get the Human Rights Project.

So the UN was set up in 1945, and then in 1948 The United Nations wanted to respond to the atrocities committed before and during the war by identifying rights and freedoms necessary to secure the dignity and worth of every individual.

So in 1948, in Paris, the UN proclaimed the universal declaration of human rights so this is a common standard of achievement for all people and all nations. And it set out for the first time fundamental human rights that were to be universally protected so its a milestone document for modern human rights.

• Universal Declaration of Human Rights 1948.

Preamble of the Human Rights excerpt: whereas recognition of inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom justice and peace of the world whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind and the advent of a world where human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people whereas it is essential to promote the development of friendly relationships between the nations the peoples of the UN have reaffirmed their faith in fundamental human rights and the dignity and the worth of the human person the equal rights of men and women, and have determined to promote social progress and better standards of life in larger freedom member states have pledged to achieve this in cooperation…. The General assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all people’s and all nations.

And then it lists rights that they’ve agreed are fundamental, but its just a declaration so it doesn’t have any legally binding effect.

But over the years it has been translated put into documents that do have legally binding effect.

So, for example, in our context, the international Covenant on Civil and Political Rights 1976 and the International Covenant on Economic, Social and Cultural Rights, this documents developed most of the rights that were in the universal declaration making them binding in states that joined up to these covenants.

• European Convention on Human Rights 1950.
• International Covenant on Civil and Political Rights 1976.
• International Covenant on Civil and Political Rights 1976.
• International Covenant on Economic, Social and Cultural Rights 1976.
• Many more treaties on specific human rights issues over time.

Over time human rights treaties and declarations have become more focused and specialised in relation to the types of groups that are protected and the rights that they have. So, for example we know have a convention on torture there is a United Nations Convention on the Rights of Persons with Disabilities, which came into force in 2008. Theres a convention against all forms of discrimination against women. There is a convention on children’s rights, migrants rights, minorities, indigenous people.

There are conventions that deal with issues on racial discrimination all sorts of things have developed out of the Universal Declaration of Human Rights.

Question 8

What is the New Zealand position on Human Rights?

Answer 8

The New Zealand Bill of Rights Act 1990.

• The New Zealand Bill of Rights was originally proposed by Geoffrey Palmer. He was the Minister of Justice in 1985 and he put forward a draft Bill of Rights,
• which he proposed was going to include rights from the international Covenant on Civil and Political Rights. It was going to include the Treaty of Waitangi, and it was going to be what we call supreme law.
• Supreme law means a law that any other law which is inconsistent with the supreme law is just void, so invalid. (So similar to the US context where any law inconsistent with the US can be struck down by the judges because the Constitution is the Supreme Law.).
• So that was the proposal.
• And the original draft of the Bill of Rights was a response to abuses of power of the previous government under Prime Minister Muldoon.
• And so the labour government at the time had come in after Muldoon and had these policy pledges about open government and improving rights. And so as part of their sort of pledges they said they’re going to introduce a Bill of Rights.
• So that was the plan. That is what was introduced, but that was not what was enacted.
• So it went through parliamentary debates, public consultation, and then eventually what gets enacted as the Bill of Rights Act 1990 is what some people call a watered down version of what Sir Geoffrey Palmer had originally proposed.
• And that is because it does not include any mention of The Treaty of Waitangi, and it is not Supreme Law.
• So Judges in New Zealand do not have any power to strike down a law as being inconsistent with the New Zealand Bill of Rights Act.
• The Long title to the act, you can see that it says An Act to affirm, protect, and promote human rights and fundamental freedoms in New Zealand. And to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.

And so this word “affirm”. That is an interesting one because that’s saying we already have these rights. The New Zealand Bill of Rights Act is not giving us any rights that we didn’t already have. It’s just affirming, protecting, and promoting rights that we already have.

So that is the background to the New Zealand Bill of Rights.

Long title is kind of equivalent to a purpose.

So this is putting the International Covenant on Civil and Political Rights into effect in our domestic law.

The New Zealand Bill of Rights Act gives domestic effect to the rights that are in the International Covenant on Civil and Political rights.

Question 9

Who has Human Rights?

Answer 9

Everyone.

The most hideous horrible person you have ever met, the worst murderer that you can imagine has human rights. And at the same time the best person that you can imagine who does all sorts of voluntary and charity work they have human rights.

Everybody has human rights which is really important to understand everybody has human rights regardless of how horrible they are.

We can see that in various documents so for example the Universal Declaration of Human Rights from the United Nations says all human beings are born free and equal in dignity and rights. Everyone is entitled to all the rights and freedoms set forth in this declaration without distinction of any kind.

And the European Equivalent in 1950, the countries that are part of the Council of Europe signed up to the European Convention on Human Rights. And in their document, it says the high contracting parties, which means the countries that agree to be part of the convention shall secure to everyone within their jurisdiction the rights and freedoms defined in this convention.

And then the International Covenant on Civil and Political rights, which New Zealand is a party to says each state party to present covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present covenant. And then that makes its way into our New Zealand Bill of Rights Act in Section 29.

Question 10

Section 29 of the NZBORA.

Answer 10

So section 29:

except where the provisions of this Bill of Rights otherwise provide, the provisions of This Bill of Rights apply, so far as practicable, for the benefit of all legal persons as well as for the benefit of all natural persons.

Whats a legal person?
The University of Auckland can be a legal person. It can have legal personhood. So corporations, things like the university can be legal persons.

Corporations can have human rights.

Might be weird but if we think of the purpose of a Bill of Rights as being limiting the power if the state then maybe it makes sense that we include things like corporations or things like the university as having these rights.

But on the other hand if we think about rights as being about our minimum needs as people, then it might not be so appropriate to think about the University of Auckland having a right to life.

So that’s what we are thinking about the nature of rights and justifications for rights is helpful.

Whats a natural person?

Natural persons are like you and me. Human beings are natural persons, but then legal persons also have rights under the NZBORA.

• We must also focus on the words “so far as practicable”. So it’s not practicable for the University of Auckland, for example, to have the right to life. So we just wouldn’t ever talk about that in the context of the University of Auckland.

So that’s legal persons and natural persons. Every legal person and natural person in the jurisdiction has the rights in the New Zealand Bill of Rights Act.

All natural persons are legal persons. I am both a natural person and a legal person. The University is not a natural person but a legal person.

Question 11

What are the specific rights and freedoms in the NZBORA?

Answer 11

The contents page of part 2
includes the specific rights and freedoms with regard to civil and political rights.

Question 12

Whats left out of the NZBORA?

Answer 12

No social and economic rights only CPR.

Question 13

When we say who does the NZBORA apply to what do we mean?

Answer 13

We don’t mean who has the rights because everybody has the rights.

When we say who does it apply to, we mean who has to respect the rights in the New Zealand Bill of rights act (hint: exercising or acting in the form of government or the state). At a high level its the state.

We all have the rights but who is obliged to respect the rights in the NZBORA?

Question 14

Section 3 of the NZBORA overview.

Answer 14

We want to understand who is obliged to respect our rights. We all have the rights under section 29 of the NZBORA.

Now we are thinking who can be held responsible legally for breaching our rights in the NZBORA.

So the only entity that can breach our rights in the NZBORA is the state and people or bodies performing public functions. So performing functions like functions of the state.

Might be different to your general understanding before.

But in general the only body person that can breach our human rights is the state and things that are in the position of the state acting as the state.

So the purpose of the rights is to limit state power. We all have the rights, but the entity that has the burden of respecting the rights is the state.

Question 15

“Benefit” of rights and “burden” of rights (section 3 of the NZBORA).

Answer 15

So we all have the benefit of the rights.

The burden of the rights is on the state at a general high level. The burden of respecting the rights is on the state.

So the only entity that can breach our rights in the NZBORA is the state and people or bodies performing public functions. So performing functions like functions of the state.

So thats why human rights law is a part of public law.

Human rights is about public law because its about governing the relationship between the individual and the state its not in general about the relationship between private individuals.

So although we all have the right to freedom of expression, if i was walking down the street outside and I’m taking and my friend tells me to be quiet, my friend will not have breached my freedom of expression by telling me to be quiet.

But if the government tells me to be quiet in specific circumstances then perhaps the government might have breached my rights to freedom of expression. So thats important.

Might be different to your general understanding before.

But in general the only body person that can breach our human rights is the state and things that are in the position of the state acting as the state.

When talking about the conceptions of human rights like natural rights and political conception.

The way we can explain how human rights works in NZ is through the political conception.

So we have the rights affirmed in the NZBORA, so granted to us by the state, the state can take them away and the rights are to protect us against the state.

So thats how rights work in the NZBORA. And that will become more clear with cases.

So the purpose of the rights is to limit state power. We all have the rights, but the entity that has the burden of respecting the rights is the state.

Question 16

Section 3 Application (meaning)

Answer 16

The state having the burden of respecting the rights is presented in the NZBORA is in section 3.

Section 3 (application) says: This Bill of Rights applies only to acts (omissions as well done

a) by the legislative, executive, or judicial branches of Government of New Zealand (the state);

or

b) by any person or body in performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

To summarise this, if we’re trying to argue that the NZBORA applies to our case or to our client’s case in the future, when you are lawyers, we need to show that there was an act done by either somebody or an entity or a body coming within a) or coming within b).

And acts can include omissions so failure s to act.

Applies only to acts done by people/groups coming a) or by b).

How do we figure out when something is in a) or b).

There are two cases which apply section 3, and those are the cases of Crown v N and the Moncrieff Spittle case.

Question 17

Section 3 (a).

Answer 17

Says: “This Bill of Rights applies only to acts done…

by the legislative, executive, or judicial branches of the Government of New Zealand.

So three branches the legislative branch, the executive branch, and the judicial branch.

What does this mean?

• Legislative branch is parliament. So the lawmaking body. An act of parliament in passing a law acts done. So drafting and then passing a piece of legislation is an act done by the legislative branch of the Government of New Zealand so that act is subject to the NZBORA.

Section 4 of the NZBORA says that if parliament does pass a piece of legislation which is inconsistent with our rights in the NZBORA then that other piece of legislation takes precedence it prevails over the NZBORA and thats because although the original suggestion was that the NZBORA would be supreme law, it is not supreme law so it’s just an ordinary piece of legislation.

Parliament is the highest body in our democratic structure. Parliament is sovereign. If Parliament wants to breach our rights by passing legislation that is inconsistent with the NZBORA it can do that and the Courts can’t do anything about it.

So legislative, parliament, lawmaking.

• Executive is the ministries, and ministers (such as prime minister). Ministries such as education, health, justice, minister of justice the minister of education and any departments that are under the executive. So thats one.

Executive, thats like ministers, ministries, departments and others within that sphere of control.

• Judicial branch is Courts and tribunals.

The application of 3 (a) is usually going to be straightforward it will usually be easy to figure out whether it is legislative, executive or judicial branch.

If we have actions taken by any of those three branches of government, they are subject to the NZBORA and if we think about that political conception and we think about rights to protect us against the state. This is the state so we want them to by obliged to respect our rights in the NZBORA because the rights are to protect us against the state.

Question 18

The difference between ss 3 (a) and 3 (b)

Answer 18

3 (a) being the legislative, executive or the judicial branches or

3 (b) any person or body in the performance of any public function, power, or duty.

So the difference between these two is a) applies these categories of people or entities (Legislative, executive, judicial).

And b) applies not to the category of a person or entity, but to the act done in the performance of any public function, power or duty.

Will make more sense when talking about case examples.

So that is the difference.

• So 3 a) any/all acts of the three branches of government are subject too the NZBORA.
• If we are not in 3 a) and we are in 3 b), its only acts that are done in the performance of a public function, power, or duty conferred or imposed pursuant to law are caught.

So 3 a) is about the type of person or body doing the act. And 3 b) is about the nature of the act that’s being done.

Question 19

Section 3 (b) in more detail.

Answer 19

• “This Bill of Rights applies only to acts done… by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body pursuant to law.

in summary the purpose of 3 b) is to impose the burden of observing the rights in the NZBORA on persons and bodies who are performing public functions.

So performing state like functions if they’re not the three branches of government which would be caught under a).

Why do we want 3 b)? Why do we not leave it at 3 (a)?

If we think about the wider purpose of protecting us against the state and we have a) which identifies three branches of the state.

So they might not be literally the state, but might be acting in a way that is equivalent to the state.

So if we had, for example, instead of the state doing something they contracted out to a private body and then they say, thats a private body doing that and we don’t need to worry about the NZBORA. That would be problematic in terms of our protection against the state.

And that’s what 3 (b) is there for it is trying to ensure that our protection is complete in that way.

• So applying this, we need

an act

which is done in the performance of any public function, power or duty

conferred or imposed pursuant to law.

So done in the performance of any public function, power or duty is important.

The immediate contrast between a public function, power or duty is public vs private. This will help identify what is public, public functions etc.

Question 20

Public functions (3b NZBORA)

Answer 20

So we have three categories of things we can look at and think about for trying to decide if something is an act done in performance of a public function, power or duty.

Categories:

• Regulatory and adjudicative acts.
• Parallel functions.
• Monopolies and utilities.

Question 21

Regulatory and adjudicative functions (public functions, 3b NZBORA) Ex Parte Considerations:

Answer 21

Regulation and adjudication means making and enforcing rules.

The parliament is the legislative branch, so its covered under section 3 a). When parliament passes a law thats already covered under section 3 (a) so we are not talking about that kind of making rules in this category.

What about private bodies that make rules and enforce rules? That is what we need to start thinking about here.

When is a private body that makes rules and enforced rules exercising a public function?

When is the private body subject to the NZBORA? So an example. A private club. A private tennis club.

You want to join a tennis club and it has particular rules saying who is eligible to join what you must do if you are a member of the club, and what kind of clothes you want to wear. Tennis clubs usually often say what kind of shoes you’re allowed to wear on the court. What time you are allowed to play, and all that kind of stuff. They are making rules and enforcing those rules as well. But the tennis club is not going to be caught by the NZBORA. The tennis club is not going to have to respect your rights in the NZBORA.

And that is because Is doesn’t meet this section of 3 b) requirement.

The way we can figure that out is through this English case ex parte Datafin which lists out some things we can think about. Things we can take into account in deciding whether the regulatory and adjudicative body os one that’s carry out a public function.

The things that they say in that case, which has been applied in NZ. So this below counts as New Zealand law as well things that they say that we should think about are firstly the “but for” test below.

Ex parte Datafin considerations:

1. The “but-for” test - whether, but for the existence of a non statutory body, the government would itself have intervened to regulate the activity in question.

This means whether “but for” the existence of a non statutory body, the government would itself have intervened to regulate the activity in question.

2. Whether the government has encouraged the activities of the body…

Second thing to think about is whether the government has encouraged the activities of the body. So that means like providing underpinning for its work. Weaving the body into the fabric of public life, public regulation. Or maybe the body was established under the authority of the government.

3. Whether the body was exercising extensive or monopolistic powers…

Our third factor here is whether the body was exercising extensive or monopoly powers.

4. Whether the aggrieved person has consensually agreed to be bound by the decision maker…

And the fourth thing to think about is whether the aggrieved person, so the person who’s complaining that their rights have been breached has consensually agreed to be bound by the decision maker.

(CB 181).

So if we think about these things with the tennis club example. It’s not the case that if the tennis club wasn’t there the government would have to intervene to regulate the activities of playing tennis.

Its not the case that the government will have particularly encouraged or underpinned the activities of the tennis club.

It’s not the case that the tennis club is exercising monopoly powers. So here we have to assume that there are multiple tennis clubs, its not the only tennis club we can go to which might then get us into a monopoly kind of situation.

So we would not conclude that the tennis club is conducting or its doing acts in the performance of a public function, power or duty.

So if the tennis club denied us membership of the club, we can’t then say that’s breaching our right to freedom of association, for example which is a right in the NZBORA that lets us join and be part of groups. And that’s because the NZBORA would not apply to the tennis club. So that is an example of when it wouldn’t apply.

These considerations do not all have to be satisfied, not every single one, it is a qualitative assessment. So it’s not like a tick box if yes, tick one, tick two and tick three but these are things to think about when deciding is it doing a public function or not.

Question 22

Regulatory and adjudicative functions: example (section 3 (b) of the NZBORA, public functions)

Answer 22

Electoral Commission v Cameron [1997] 2 NZLR 421 (CA).

This is an example of where there is a finding that the regulatory body is performing a public function.

Facts:

• So this case Electoral Commission v Cameron, this is from back in the 90s when there was a referendum when the NZ society was deciding whether to change the voting system from FPP to MMP which we have now.
• And the Commerce Commission was putting out ads to educate the public about what MMP was and there was a complaint made about the content of the ads that the Electoral Commission had released.
• And the Advertising Standards Authority has set up codes of practice for advertising, and it had a board for dealing with complaints about advertising.
• And so it dealt with a complaint. And then the question was whether it’s dealing with the complaint was performing a public function.
• So If the Board of the Advertising Standards Authority was performing a public function, then it’s decision could be subject to whats called

judicial review, which is just a judge reviewing the decision making process of the public body to see if the decision was made following a proper process. And taking into account the things that needed to be taking into account, taking into account things that shouldn’t be taken into account that is judicial review.

• So if you have a successful judicial review case, what happens at the end is The Court says to the decision maker, you must make your decision again following a correct process.

So they can still decide the same outcome. The Court isn’t telling then what the out one of the decision is, but they’re telling them you must try again, decide again following a correct process.

• So that is the context, it was a debate over whether the decision of the board could be subject to judicial review.

So its not actually a NZBORA case, but it’s an example of the same kind of reasoning that we can use by analogy for a NZBORA case.

Decision:

So The Court said yes, the decision could be subject to judicial review, it was the exercise of public function so the decision making by board.

• And that’s because the board had statutory recognition under the Broadcasting Act 1989.

So that showed that it’s role was of a public nature and it was equivalent in part to the role of the Statutory Broadcasting Standards Authority.

So although its a private body it had the equivalence to the public body, and it was setting standard rules for advertising, which were collective standards that had a coercive effect on media. So all media had to follow these rules.

• So in the language of section 3 (b), it was that the Advertising Standards Board was a body that was performing a public function.
• So if it were a NZBORA case then it would have had to have complied with the NZBORA in making its decisions.

Question 23

Parallel Functions (Section 3b NZBORA, Public Functions)

Answer 23

So parallel functions refers to the idea of what was said earlier, which is a private body doing a function of the government.

So it might be equivalent to what the government would do, but for whatever reason, the government is not doing it.

So from the course reading, the Rishworth Text, this is explained below.

• “[A] body is performing a ‘public function’ when it seeks to achieve some collective benefit for the public… and is accepted by the public … as having authority to do so. Bodies therefore exercise public functions when they intervene or participate in social or economic affairs in the public interest.”

CB 182.

So potential examples might be things like provision of health care or education. Now this is only potential examples because we can’t just take education and say thats a parallel function we have to think about all of the circumstances.

So there are two examples of parallel functions which are:

• M v Board of Trustees of PNBHS [1997] 2 NZLR 60 (HC)

and

Alexander v Police [1998] HRNZ 632 (CA).

Question 24

Parallel Functions: examples (section 3b, NZBORA, public functions)

Answer 24

So there are two examples of parallel functions which are:

• M v Board of Trustees of PNBHS [1997] 2 NZLR 60 (HC)

and

Alexander v Police [1998] HRNZ 632 (CA).

So if we think about schools we can probably reasonably and happily say that a public school, a state school is performing acts in the performance of a public function with the provision of education. And there will be other factors we will take into account in reaching that conclusion but we are probably pretty content about that conclusion.

But private schools may be a little bit different.

This case, this school Palmerston North High School, is a public school, but as part of its services, it operated a boarding hostel.

• Parallel functions are spoken about in R v N.

Question 25

What are the elements of M v Board of Trustees of PNBHS [1997] 2 NZLR 60 (HC)? Which is a case on an example of a parallel functions (section 3b of the NZBORA, Public Functions).

Answer 25

So if we think about schools we can probably reasonably and happily say that a public school, a state school is performing acts in the performance of a public function with the provision of education. And there will be other factors we will take into account in reaching that conclusion but we are probably pretty content about that conclusion.

But private schools may be a little bit different.

Facts:

• This case, this school Palmerston North Boys High School, is a public school, but as part of its services, it operated a boarding hostel.
• So the issue was whether the operation of the boarding hostel was an act done in the performance of a public function, so the wording of section 3b.
• So parents would enter into contracts with the school if they wanted their child to be a boarder at the school.
• Not every person at the school would be living in the boarding hostel, but some students did.
• And the particular student in question had been expelled from the boarding hostel.
• And so if the provision of the boarding was an act done in the performance of a public function then that decision to expel the boy might engage section 27 of the NZBORA, which is right to justice.
• So the Key issue is whether the action of the school was done in the performance of a public function.

Decision:

• The judge held that it wasn’t because the providing of the boarding hostel was just a purely private matter. This is different from the providing of the education. This is just providing of the boarding hostel.
• That was a purely private matter. Administering that hostel wasn’t part of the school’s public function. It was dealt with through contract. And so that act was not caught by section 3 (b).

The difference between 3 a and 3 b is that 3 a is about the people and 3 b is about the acts.

So there can be a school, for example, that does both private and public acts.

So thats the Board of Trustees of PNBHS high school case.

Question 26

What are the elements of Alexander v Police [1998] HRNZ 632 (CA)? Which is a case on an example of parallel functions (section 3b of the NZBORA, Public Functions).

Answer 26

The second example is Alexander v Police.

Facts:

This is about the Wellington Free Ambulance Service.

• The question here is basically whether the ambulance drivers are performing a public function.
• What happened here was that Alexander had been convicted of drunk driving.
• so Alexander had crashed his car and the ambulance had come to the scene and they had taken him to the hospital for medical treatment and also to have his blood alcohol level checked to see whether he was driving under the influence.
• And he didn’t want to go to the hospital. But the ambulance drivers took him there anyway.
• And his blood specimen was taken, and it did show that he had too much alcohol.
• And so he was convicted of drunk driving.

Decision:

• And so Alexander was trying to argue that that evidence of his blood specimen result had been obtained in breach of the NZBORA.
• So he’s trying to say the ambulance drivers arbitrarily detained me and therefore that evidence was obtained in breach of my right and it should be excluded.
• But that argument only works if section 3 applies to the actions of the ambulance drivers.
• And section 3b was held to not apply to the actions of the ambulance drivers.
• And that is because the ambulance service is actually a private service in this country.
• St Johns ambulance, Wellington Free Ambulance it is a voluntary charitable service. It’s not something that’s provided by the state.
• So The Court said the ambulance was administered by this private group.

It was an independent organisation and it couldn’t be seen as an arm of central or local government.

And that was the case even though it did receive some public funding and it did have this important role in our society.

• So it couldn’t be said that the ambulance drivers were bound to respect the rights in the NZBORA.

If we take a step back and we think about our justifications for human rights, then hopefully we can understand the outcome here because if human rights are to protect us from the state. And the ambulance drivers are not part of the state. Then we don’t need the NZBORA to apply to their actions.

We contrast that with police officers. Police officers would be under section 3 a they would be part of eventually once we through the executive as law enforcement and we do need protection from the actions of police officers and we do need police officers to respect our rights in the NZBORA.

We’ve said that the ambulance drivers are volunteers, police are employees eventually of the government. What if we had a volunteer police officer if we has such a thing? This will be discussed in R v N. So the case of R v N where a private person acts to try to and arrest somebody on behalf of the police.

Question 27

Monopolies and Utilities (Section 3b of the NZBORA, Public Functions)

Answer 27

The next category is monopolies and utilities.

These are activities that maybe used to be run by the government, but over time perhaps they got sold off or privatised and now they are run by private entities.

So the course materials explain below.

• “The important public interest in the provision of certain essential services, and the historic involvement of government, justifies characterising their provision as a public function”.

And

• “Unpacking these factors, the significant ones are public interest and ownership. These are related since public ownership probably reflects the judgement of public interest…”

So the important factors in deciding whether something like a provision of a utility is an act done in the performance of a public function, the important factors are public interest and public ownership.

CB 183- 184.

Three examples are given of cases which show whether something is performing a public function in form of monopolistic powers and utilities.

Question 28

Monopolies and Utilities: examples

Answer 28

Mercury Energy v Electricity Corporation of New Zealand [1994] 2 NZLR 385 (PC).

This is a decision from the Privy Council. So its from when the Privy Council was the highest Court in NZ. It’s no longer the highest Court. Now our highest Court is the Supreme Court, but pre 2004, it was the Privy Council.

And

Federated Farmers v NZ Post [1992] 3 NZBORR 339 (HC).

And

Ioane v R [2014] NZCA 128.

Answer 29

Mercury Energy v Electricity Corporation of New Zealand [1994] 2 NZLR 385 (PC).

Facts:

This is a decision from the Privy Council. So its from when the Privy Council was the highest Court in NZ. It’s no longer the highest Court. Now our highest Court is the Supreme Court, but pre 2004, it was the Privy Council.

So the Electricity Corporation of New Zealand was the provider of wholesale electricity in New Zealand.

• And this was another decision about whether their actions could be subject to judicial review.
• And so if they’re performing a public function, then their actions can be subject to judicial review.
• So the Question is, are they performing a public function when they provide wholesale electricity services?

Decision:

• The answer was yes as to whether they the wholesale electricity services are performing a public function because the service was publicly owned.
• It was carried out in the interests of the public. So they were both public interest and public ownership there.
• So that would come within section 3 (b) if we were talking about a wholesale provision of electricity.
• It might get more difficult if we had a private electricity provider, so if it were privately owned and they were providing electricity thats where it might get more difficult.

Question 30

What are the elements of Federated Farmers v NZ Post [1992] 3 NZBORR 339 (HC)? Which is a case which shows an example of monopolies and utilities (section 3b NZBORA, Public Functions).

Answer 30

The second example is Federated Farmers v NZ Post.

This is about the provision of the mail service that NZ post operates.

Decision:

• So that was held to be a public function the operation of the mail service. Although New Zealand post was a state owned enterprise, so slightly private but has a sort of public flavour to it.
• It was an activity carried out for the public in the public interest.
• So provision of mail services by the NZ post is an a act done in the performance of a public function.

Question 31

What are the elements of Ioane v R [2014] NZCA 128? Which is a case which shows an example of monopolies and utilities (section 3b NZBORA, Public Functions).

Answer 31

We can contrast Federated Farmers case with the case Ioane v Crown.

This case also involves NZ post.

Facts:

• So in this case, the defendant Ioane was an employee of NZ Post .
• And some mail had been going missing.
• And NZ post was suspicious that he was stealing the mail.
• And so employees from NZ Post visited his home with his consent, they looked through his house and they found the missing mail.
• And so after that happened, he lost his job. He was fired. And NZ post referred the matter to the police.
• So they (NZ post) told the police what had happened. They told the police what they had found at his house.
• And the police then got a search warrant so that they could search his house.
• We have section 21, the right to be free from unreasonable search and seizure.
• The police are not allowed to just walk into your house any time they want to and look through your things. They need to have a warrant, and reasonable suspicion that you may have committed a crime.
• And so they did get a warrant and they went to his house and they found the mail that he had taken.
• And so Ioane was charged with theft of that mail, and then he was convicted.
• And so this is his appeal against conviction.
• And he was trying to argue that evidence of the mail that was found at his house had been found in breach of section 21, the right to be free from unreasonable search and seizure. And so it should have been excluded.
• That was the argument he was trying to make.
• Now that argument only works if the NZBORA applies to those NZ postal employees.

Just because we said in Federated Famers and NZ post that the provision of mail was an act done in the performance of a public function.

We are talking about section 3b so it doesn’t mean that everything that NZ post does is automatically performance of a public function.

Decision:

• So in this case the NZBORA did not apply to the actions of those NZ post employees who went to his house because they were acting in the employment capacity, a private capacity.
• It wasn’t them acting in the performance of a public function. It was them dealing with a employment, grievance and employment dispute.
• So that was a private action by them. It wasn’t an act in the performance of a public function, power or duty.

So 3a applies to the people, the groups, 3b applies to the acts.

Just because NZ post was found to have a public function and provision of mail doesn’t mean everything that NZ post does is a public function.

Question 32

Difference between section 3a and section 3b of the NZBORA?

Answer 32

3a applies to the people, groups.

3b applies to the acts.

Just because one part of a group (for b) is a public function doesn’t mean all parts are public and can be a private function.

Question 33

What are the two cases of application (or not) of the NZBORA?

Answer 33

R v N [1999] 1 NZLR 713 (CA): arrest by a private citizen.

Moncrieff-Spittle v RFAL [2022] NZSC 138: denial of a platform for speaker event.

Question 34

What are the elements of R v N [1999] 1 NZLR 713 (CA): arrest by a private citizen? Parallel functions case.

Answer 34

Section 22 of The NZBORA: Liberty of the person: Everyone has the right not to be arbitrarily arrested or detained.

Parallel functions case compared to all the categories that help us decide whether a group is caught under 3 (b) doing a public function, power or duty.

Function in this case is Law Enforcement, so it’s a private person attempting to carry out the function of law enforcement. Does section 3 (b) apply.

The right that is in issue is section 22 in this case.

This case explains the relationship between section 3 and section 22. And secondly the idea of purporting to exercise a public power. And thirdly the meaning of a power being conferred under section 3 (b) public function, power or duty (required). The public function power or duty myst be conferred or imposed pursuant to law.

Facts:

• Defendant N was shopping in an electrical appliance store L.V Martin was the name of the store.
• The defendant N was suspected of shoplifting. So the shop assistants thought that he had taken something and they followed him out of the store.
• And one of the shop assistants, K, thought that N had something under his top (sweater) and asked to see what was under his sweater.
• And N indicates No, and apparently his English wasn’t very good but he indicated, No he’s not, he doesn’t want to show and he tries to get away. He just walks away.
• And so K the shop assistant took hold of N and escorted N back to the shop.
• And then inside the shop, back inside the shop N bent over and out from his clothing dropped a video power pack. So basically a battery pack for a video camera.
• so that is what they were suspecting that he had stolen. And then they see that come out of his clothing.
• And our inference there would be that he had actually stolen that video power pack.
• And so K and the other shop assistants then escorted N to the manager’s office and they called the police.
• And so N was charged with theft. So if we think about criminal law the elements of a criminal offence for theft we’ve got an actus reus of the taking of the item and a mens rea of an intention to permanently deprive the rightful owner of the item and the absence of a justification or excuse.
• So N is charged with theft.

Evidence originally excluded:

• Before N’s trial, N’s lawyer so N’s defence counsel applied to have that evidence of the power pack excluded and that was successful.
• So the District Court judge held that N had been arbitrarily arrested. And so the evidence obtained, which was the power pack, the Judge said that should be excluded. And so the effect of that is that then there’s not enough evidence to take N to trial. There’s nothing on which he could be found beyond reasonable doubt to have committed theft in relation to. And so N gets let free, he’s no longer on trial. There’s not enough evidence to prove that he has committed a crime because that evidence of the power pack is not allowed to be put before The Court at the trial.
• So then the Solicitor General acting for The Crown then appealed against that pre-trial decision below.

Court of Appeal judgement/decision:

“This is an application by the Solicitor-General for leave to appeal against a pre-trial ruling excluding the admission at trial of certain evidence which the District Court Judge held was obtained in consequence of s 22 of the New Zealand Bill of Rights Act 1990.

This section provides:

S 22 Liberty of the person - Everyone has the right not to be arbitrarily arrested or detained.

• So this case is an example of where the Crown is the appellant and the defendant is the respondent because the Crown is appealing the decision that the pre-trial judge had made saying that was wrong and trying to clarify the law in this case.
• The Excerpt above is the CA judges explaining the application by the Solicitor General for leave to appeal.
• So the Crown is saying the earlier judge is wrong in law and is appealing on that basis.

Issues:

• The Evidence could be excluded under s 22 of the NZBORA only if the NZBORA is engaged under s 3.
• Was there an arrest, or detention of N (exercise or purported exercise of power)?
• If yes, was it arbitrary?
• Were the acts of K done in the performance of any public function, power or duty?
• If so, was the function, power or duty imposed on K by or pursuant to law?
• If NZBORA does apply and s 22 has been breached, should the evidence be excluded?

So the judge in the District Court had said that an arrest by a private person would be an exercise or purported exercise of a public function or power.

So in the District Court, the judge held that the shop assistant K did not actually have the power to arrest N but what they had done was purported to exercise the power to arrest. They had tried to exercise the power to arrest.

And because they didn’t actually have the power to arrest, the arrest that the judge says happened was unlawful. And that meant it was arbitrary. So this is what the District Court judge said.

• So know we are talking about an appeal where the Crown is saying the District Court judge was wrong.
• So then we have our Crown solicitor general appeal against the District Court’s finding. And the crown is saying the District Court judge has got it wrong.
• The Crown in the appeal case is saying the NZBORA doesn’t apply to the actions of the shop assistant. So the evidence wasn’t obtained in breach of the NZBORA. So the evidence shouldn’t have been excluded. So that’s what the Crown is trying to say in the CA.

Actions of police vs private citizens (CA judgement)

“The exercise or purported exercise by the police of their powers comes within s 3(a) of the BORA, as an act of the executive branch of government. In the case of private citizens, acts in question attract the BORA under s 3 (b) if they are done in the performance of any public function, power or duty conferred or imposed on that citizen by or pursuant to law. Wholly private conduct is left to be controlled by the general law of the land”. CB 194.

CA said police come under 3 (a) under executive. For private citizens acts in question attract under 3 (b) if done in performance of public function, power, duty conferred or imposed on that citizen by or pursuant to law. Wholly private conduct not caught.

First we have to show that NZBORA applies to actions of the shop assistant.

• The action we are looking at is either arrest or detaining N. Is that action arresting or detaining the performance of public function, power or duty?

If we start with arrest we need to know more about what arrest means in NZ.

The action of arresting someone (CA):

R v Goodwin [1993] 2 NZLR (CA)

Arrest is a deprivation of liberty in aid of the process of the criminal law. (This is what arrest means in NZ)

“In Goodwin the majority held that to constitute a Bill of Rights arrest there must be a claim to the exercise of a legal authority. Where the restraint is imposed by a private citizen, the deprivation of liberty cannot be characterised as an arrest unless the private citizen “arrester” is manifesting an intention to invoke the authority of the criminal law…”

So there are two problems with saying N was arrested. The first problem is to do with the manifesting intention above.

Cross- examination of K:

Q: So you went outside and underneath the fly over you detained my client?

A. Yes

Q. You didn’t have any legal right to do that did you?

Q. So he was simply detained and moved back to the store?

A. Yes

This exchange is between K (shop assistant) and N’s defence lawyer we have questions and answers.

So this is evidence because it is happening in Court, the questioning and answering is evidence.

• From this exchange in the cross-examination, we can say that there’s no manifestation by K of an intention to arrest. So even if K had the power to arrest, there’s no manifestation of the intention to arrest. So that meaning of arrest from Goodwin hasn’t been established here.

So that is the first problem with saying K was arresting N.

Power to arrest:

The second problem is about whether there is an exercise or purported exercise of a public function, power or duty, which is being conferred by law.!

So if we pretend K never said that in the cross-examination, so lets pretend that K did have an intention to arrest, did manifest an intention to arrest, even if that was the case. There’s still a question of whether that arrest, if it was an arrest, was an action that was done in the performance of a public function, power or duty conferred by or pursuant to law.

And to think about this we need to know about the power to arrest in NZ. What is that power? Where does that power come from?

• s 315 (1) Crimes Act 1961: no one shall be arrested without warrant except pursuant to the provisions of (a) this Act; or (b) some other enactment expressly giving power to arrest without warrant.

So that is our starting position.

We know from the facts that there was no warrant or anything like that so we need to look at when can somebody be arrested without warrant?

• s 315 (2): any constable, and all persons whom he calls to his assistance, may arrest and take into custody without a warrant … any person whom he had good cause to suspect of having committed … any offence punishable by imprisonment.

What is the problem with that if we tried to apply this to R v N? There was no involvement of the police at this early stage, so there was no constable, police officer asking K to assist. So no power under s 315 (2) to arrest.

N’s argument was that the store employees were purporting to carry out what’s called a citizen’s arrest.

• Section 35 of the Crimes Act: everyone is justified in arresting without a warrant (a) any person whom he finds committing any offence against this Act … for which the maximum punishment is not less than 3 years imprisonment.

So N was saying if somebody conducts a citizens arrest, then thats an act done in the performance of a public power conferred or by or pursuant to law under 3 (b).

But then there is still a problem with this argument. And to understand this problem, we need to appreciate the difference between a power and an immunity. Or a power and a justification.

So s 315 (2) is a power. It empowers people to arrest.

S 35 is just an immunity. So if a citizen did arrest somebody, then the citizen would probably be committing a criminal wrong and perhaps a tort. So section 35 gives that citizen a justification and excuse for doing that so that they wont be found to have committed a crime.

So our three elements of a crime, mens rea, actus reus, and the absence of a justification or excuse. This would be a justification for somebody, a citizen who has arrested somebody else (s 35). But it’s not a power to arrest. It’s an immunity. Its not a power. So it’s what we call a shield and not a sword. It doesn’t enable us to go and arrest people. It just protects us if we do go and arrest people in circumstances where section 35 is met.

No power under s 35. Not a power or duty for BORA 3 (b).

And there is also a further problem with applying section 35, because it has to be for an offence where the maximum punishment is not less than three years imprisonment. For theft it wouldn’t be. So thats another problem.

So there’s no exercise of a public power conferred pursuant to law in this case, and there’s no purported exercise. There’s just no power. So no arrest.

And then section 23, right not to be arbitrarily arrested or detained. So we’ve said no arrest.

What about detention?

There is also no detention.

“Although there was a de facto detaining of N … there is no suggestion of any statutory power to detain which they could have been exercising nor was any common law authority to do so identified.”

So, in summary this case R v N, the CA held that section 3 (b) did not apply to the shop assistants.

It was not an arrest or detention done in the performance of a public function, power or duty conferred by or pursuant to law.

So thinking about parallel functions, a parallel function is the taking of an action for collective benefit of society with authority to do that.

So although we have the function of law enforcement and perhaps it’s of benefit to society that K is taking these steps in pursuance of law enforcement, K didn’t have any authority to do that.

So it turns on the existence of authority and K didn’t have authority so it wasn’t an act caught by the NZBORA.

So the wording in section 3 of the NZBORA, the shopkeeper was not exercising a public power conferred by law.

So the NZBORA doesn’t apply. And then that means that the District Court judge should not have excluded the evidence. So the appeal is successful and the Crown is clarifying the law going forward as to what when a citizens arrest will be covered by the NZBORA.

Question 35

What are the elements of Moncrief-Spittle v Regional Facilities Auckland Ltd [2022] NZSC 138, [2022] 1 NZLR 459?

Answer 35

Section 14 of the NZBORA: everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

Case about the right to freedom of expression.

This has been going on for a couple of years. The Supreme Court judgement came out last year [2022].

• Two people Lauren Southern and Stefan Molyneux they were going to give a talk, a speech that was controversial and it was cancelled the talk that they were going to give, in part because of the risk of protests against them. Because of the things that they were going to say, things they’ve said in the past, and just the controversial nature of them as people.
• So although it was cancelled, protests went ahead anyway.
• Protestors turned out at Aotea square in 2018 even though the event was cancelled. And the flavour of what people are concerned about was racism content. No room for racism all you fascists bound to lose.
• So thats the context from the news.

Facts:

• Is that RFAL operated and managed events/venues for Auckland Council.
• And one of those venues was the Bruce Mason Centre in Takapuna.
• and Axiomatic Media which is an event promotor/organiser, entered into a contract with RFAL to hire the Bruce Mason Centre to have those two people, the speakers give their talk at the Bruce Mason Centre.
• But once this was publicised, RFAL started to receive complaints about the proposed event because of the nature of what the people had said in the past and what they might say at the event if it took place.
• And so RFAL cancelled the contract and said, No, you can’t use our venue for this event anymore.
• So that was because they knew from some activist groups that there was going to be protests about the event and they were concerned about health and safety risks of that going ahead.
• Now Mr Moncrief-Spittle had a ticket to attend the talk, so he wanted to attend the talk.
• And Dr Cumin was a member of the Jewish community and he was concerned that this cancellation would set a precedent for future where maybe events where the Jewish community was wanting to hold talks might be cancelled because there might be a risk of other people coming to protest against their events.
• And so these two people together applied for judicial review of the decision to cancel the contract to cancel the event.
• So in relation to judicial review, they’re saying the decision to cancel the event or cancel the contract wasn’t made according to the proper process.
• And they are also saying that cancelling the event was a failure to act consistently with their right So Mr Moncrief spittle and Dr Cumins rights under section 14 right to freedom of expression.

So that is the facts.

Issues:

Does NZBORA apply to the actions of RFAL?

If NZBORA does apply, was the decision to cancel (the contract/event) a breach of protected rights?

(the two above are the ones we are concerned with)

Is the decision to cancel amenable to judicial review?

If the decision is reviewable, was the decision to cancel unreasonable and how is freedom of expression taken into account in that assessment?

Ransfield Criteria (Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC)):

So in the case after reading you’ll see the Supreme Court talking about what’s called the Ransfield Criteria.

So this is a list of things to think about in this context, which come from the Ransfield case.

• So in Moncrieff-Spittle the Supreme Court approves this list. So this is law that we can apply in New Zealand. This is a New Zealand case anyway (Ransfield) but now the Supreme Court is saying, yes, these are good things to think about.
• In this case they say that this is a guide. Its not a checklist. So its not like you tick off five things that say public, five things that say private, no. We just consider all of this to the extent that it’s relevant.
• But the things that we take into account, the Ransfield criteria these are quite familiar to other things mentioned about public functions.

It can be hard to decide…

• [46] In determining the correct, s 3 (b) has to be read in the context of the section as a whole. The scope of s 3(a) will generally be clear cut. Section 3 (b) is trying to ensure that acts of other bodies not within s 3 (a), but which similarly carry out functions of a public nature, are caught by the Bill of Rights. There will always be a question of judgement involved in determining whether the functions, powers and duties exercised mean that the entity has the necessary “public” features. And the application of s 3 (b) will sometimes turn on quite fine margins, meaning those judgement questions may be difficult.
• Cane notes that ‘[nor] is publicness (or privateness) like redness - a characteristic that can be observed by the senses. Rather the classification of functions and activities as public or private is ultimately a matter of value-judgement and choice.

Can be difficult to find whether it is a public function. Even Supreme Court above thinks it is difficult.

3 (a) usually easy. Catch state in 3a and things like the state in 3 (b).

Arguable, comfortable with uncertainty, because uncertainty is where we develop the law.

Cane, its not like deciding whether something is red or not it can be hard.

The parties arguments:

• [50] There is no issue that RFAL in cancelling the contract was performing a function conferred by law. The issue is whether for these purposes, it is “public”. On that question, as we have indicated, the appellants say RFAL meets the clear majority of the Ransfield indicia and that, accordingly, s 3 (b) applies. RFAL takes issue with this assessment. Amongst other matters, RFAL emphasises the commercial nature of the contractual arrangements with Axiomatic and says there is no difference in quality between its acts and those of any privately owned venue providers. RFAL also says that there is no statutory source for any public power and no “governmental” element to RFAL’s function. Finally, RFAL relies on the absence of coercive or regulatory powers in contrast to those of the regulator in Low volume vehicle technical assoc inc.
• Moncrieff and Cumin said RFAL meets the clear majority of the ransfield indicia and so section 3 (b) applies.
• In response RFAL says the opposite. So RFAL takes issue with this assessment. Commercial nature of contractual arrangements is not different in quality from privately owned venue providers. And no statutory source for any public power and no governmental element to their function.

And they compare with Low Volume Vehicle Technical Assoc Inc. in this case they find section 3 (b) does apply. And they say well in that case the important thing was that they were exercising coercive or regulatory power. And they say in our case there isn’t an exercise of coercive or regulatory power so we should distinguish this case. And Court should find not caught under section 3b of NZBORA.

Supreme Court Decision/conclusion:

• “[51] We agree with the Court of Appeal that RFAL comes within s 3 (b) in respect of the decision to cancel the contract. That is because we agree RFAL effectively stands in the shoes of Auckland Council in providing a service that is intended for the social well-being of the community, and so there is a governmental aspect to its functions. As Mr Hancock for the commission put it, the Bruce Mason Centre is publicly owned property available for public hire for expressive activities. RFAL, a public body established for this purpose and with some public funding. Facilities hire of the venue and so had an important role in providing facilities for expressive activities. Moreover, RFAL does not exist for private profit and is subject to governance by Auckland Council.

[59] “In summary then, the Commissions submissions capture the position well when they say that RFAL can be seen “as part of the legislative and regulatory fabric” enabling Auckland Council to undertake its business. In addition, viewed overall, it is relevant that running this part of the Council’s business engages freedom of expression. We agree with the CA that RFAL’s decision to cancel the contract was subject to the BOR.”

RFAL is caught by section 3(b) and is performing a public function, power or duty by or pursuant to law.

• BMS publicly owned property available for public hire for expressive activities.
• RFAL public body for this purpose with some public funding. Facilitates hire of venue so has important role for expressive activities. Not for private profit and subject to governance by Auckland Council.
• Standing in the shoes of government. Providing service for well being of community.

Is right to freedom of expression engaged in this case?

Did the decision limit the applicants’ rights under s 14 NZBORA?

• Positive Obligations

Positive on body state to promote our rights somehow. Take steps to protect people form threats to life etc. On the state to do things. If they don’t they can violate. Requires state to do something.

• Negative Obligations.

Obligation not to do something. Such as Not to kill somebody etc.

Way rights are expressed in NZBORA is more of the negative conception. S 22 not to be arbitrarily, s 8 not to be deprived of life.

S 22 is a negative right so no duty on the state to do anything to facilitate expression so RFAL doesn’t need to provide a venue or to uphold the contract so that there can be this expression. If it does apply then they haven’t done anything to breach the right.

• On the other hand Moncrief and Cumin said that they have to facilitate.
• The Supreme court doesn’t decide the point as to whether we have positive obligations in NZ human rights law.
• alot has been written about it. UN ICCPR says we have to ensure rights so may have positive. But they don’t need to decide because right to freedom of expression is to seek receive and impart information.
• Moncrieff and Cumin were looking to receive and thats what they argue, his right to receive has been limited but we need to know is that right unjustifiably limited by the choice to cancel?

Outcome:

NZBORA s 5:

“… The rights and freedoms contained in this BORA may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Rights not absolute under NZBORA can be limited can only be limited prescribed by law in free and democratic society.

Found to be a reasonable limit because of health and safety issues and that is a proportionate limit to uphold health and safety of others to cancel the event.

Also relevant the speakers can go use another venue the power station also cancelled but no problem because power station is private.

Also event itself is not fully public ticket price $80 and $800 for dinner with speakers so not fully public event.

Limit was reasonable limit.

And outcome was Supreme Court dismisses the appeal.

Section 3 (b) applied to RFAL right was engaged but limit was a reasonable limit.

So Moncrief and Cumin Lose.

Good for deciding whether something is a public body. Protecting against state. Limiting what state can do to us. Section 3b is difficult.

Question 36

Ransfield Criteria from Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC))

Answer 36

I. Whether the entity concerned is publicly owned or is privately owned and exists for private profit;

ii. Whether the source of the function, power, or duty is statutory;

iii. The extent and nature of any governmental control of the entity (the consideration of which will ordinarily involve the careful examination of a statutory scheme);

iv. Whether and to what extent the entity is publicly funded in respect of the function in question;

v. Whether the entity is effectively standing in the shoes of the government in exercising the function, power, or duty;

vi. Whether the function, power, or duty is being exercised in the broader public interest as distinct from merely being of benefit to the public;

vii: whether coercive powers analogous to those of the state are conferred;

viii: whether the entity is exercising functions, powers, or duties which affect the rights, powers, privileges, immunities, duties or liabilities of any person (drawing by analogy on part of the definition of statutory power under s 3 of the Judicature Amendment Act 1972);

ix: whether the entity is exercising extensive or monopolistic powers; and

x: whether the entity is democratically accountable through the ballot box or in other ways.

Question 37

Brief elements of Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC))?

Answer 37

Facts:

• Ransfield and some other people had been banned from taking part in talkback radio programmes that the radio network had running on its radio stations.
• Now radio network is a private broadcaster. Not talking about Radio NZ. Radio NZ is different from the radio network. Radio NZ is a public body. Radio network is private.

Decision:

• And so in the ransfield case the judge ultimately decided that the NZBORA did not apply to the radio networks decision to ban these particular people from taking part in the talkback radio.
• and thats because although the radio network was performing a function or power conferred by law, it was a private function.
• So although providing talkback radio programmes is an important public role, we might say a public service which promotes freedom of expression and public debate on issues in NZ.
• And although the radio network was promoting a public interest, it did not mean that they were performing a public function.
• So thats a little bit difficult. Just because something is in the public interest doesn’t make it a public function.
• So in the case the Judge Justice Randerson is talking about that there is a clear distinction in NZ law between Radio NZ as the public broadcaster and private commercial radio operators.
• So in this case, the government didn’t have any ownership interest in the radio network. And the content of the radio stations from the radio network was not supervised by the government in any sort of real sense.

So that is the background for Ransfield.

And from the case Justice Randerson lists out the Ransfield Criteria. 10 things we can consider when trying to decide this kind of case.