Human Rights

Question 1

Section 3

Answer 1

Applies to the three branches of government, and those carrying out public functions

Question 2

Section 4

Answer 2

Other enactments not affected. If there is an inconsistency, parliament’s intended meaning prevails

Question 3

Section 5

Answer 3

Rights and freedoms may be subject to reasonable limitations

Question 4

Section 6

Answer 4

NZBORA consistent interpretation preferred

Question 5

Step 1

Answer 5

Ascertain Parliament’s intended meaning of the legislation and consider how it impacts on the circumstances of the case.

Question 6

Step 2

Answer 6

Is the ‘natural meaning’ prima facie inconsistent with NZBORA right?
* No: Adopt natural meaning (end of analysis)
* Yes: Move to step 3
* Apply Atkinson test for discrimination

Question 7

Atkinson Test

Answer 7

1. Is there differential treatment of a comparator group on prohibited grounds?
   a. McAlister v Air NZ defines comparator group: A group with exactly the same material characteristics, minus the claimed ground of discrimination.
2. Does that treatment result in a material disadvantage?

Question 8

Step 3

Answer 8

If there is an inconsistency, is it justified under s 5?

Question 9

R v Oakes proportionality test

Answer 9

1. Does the limit pursue a sufficiently important objective to warrant overriding a protected right?
   a. McGrath J said the public health objective = almsot always justifies overriding rights
2. Is the means chose to achieve the objective proportional?
   a. Is there a rational connection between the limit and the objective?
   b. Is there minimum impairment of the right?
   c. Overall is the limit proportional to the objective being pursued?
   i. Tipping J: A sledgehammer should not be used to crack a nut; use the appropriate tool for the job at hand

Question 10

Step 4

Answer 10

If justifiable, adopt natural meaning

Question 11

Step 5

Answer 11

If it is an unjustifiable limit, re-examine the words using s 6 to determine whether it is reasonably possible for a meaning either consistent or less inconsistent with the right to be found. If year, adopt that meaning.

Question 12

Step 6

Answer 12

If step 5 not reasonably possible, s 4 mandates that Parliament’s intended meaning must be adopted.

Question 13

Section 65 HRA

Answer 13

Indirect discrimination - where the effect is discriminatory, as opposed to the purpose

Question 14

Section 73 HRA

Answer 14

Positive discrimination: where a group of persons is treated differently to support equality

Question 15

Quilter v A-G

Answer 15

Same sex marriage. If the legislation will have a disproportionate effect on a comparator group, the legislation is indirectly discriminatory

Question 16

Why are remedies important?

Answer 16

1. Provide compensation for harm down
2. Act as a deterrent for the state to act in ways that breach individual rights

Question 17

Declaration of inconsistency

Answer 17

where the court formally declares that some legislation or provision is inconsistent with NZBORA. It does not carry the same coercive power as an injunction

Question 18

A-G v Taylor

Answer 18

Concerned prisoners right to vote. Effect was limited; it determined no legal rights and conveyed no legal consequences.

Question 19

A-G v Taylor (2018)

Answer 19

Declarations not an effective remedy for parties in dispute, precisely because it does not alter any legal rights.

Question 20

Borrowdale v Director General of Health

Answer 20

Illustrates a greater willingness of the Courts to issue a declaration of inconsistency, even where the plaintiff is largely unsuccessful.

Question 21

Simpson v AG

Answer 21

Where a plaintiff has no other effective remedy against the government for a breach of the NZBORA, the Court may award monetary compensation to vindicate the right or freedom breached. Quite uncommon.

Question 22

Other remedies

Answer 22

Exclusion of evidence, judicial review

Question 23

S 92I HRA: non legislative remedy for discrimination

Answer 23

If tribunal satisfied there is a breach from the right to be free from discrimination, it has powers to order remedies (declaration of breach of HRA, injunctive relief, damages, specific performance/mandatory injunctions. So quite expansive statutory powers to order relief. Damages are often compensatory in nature (loss suffered, including non-tangible). Limit on damages is a cap of $350,000. Appeals often go to HC, so is kind of its own type of district court body.

Question 24

S 92J HRA - legislative remedy

Answer 24

If the discrimination is a result of legislation, the only available remedy the HRRT has the authority to grant, set out in s 92J of the HRA, is a formal declaration that the section is in breach of the right to be free from discrimination, protected by s 19 NZBORA. But MAY grant - not obliged.