NZBORA Flashcards
New Heath NZ Inc v South Taranaki District Council
2018, SC (NZ)
Claim that the fluoridation of NZ water for the purpose of preventing tooth decay is a breach of NZBORA section 11 - right to refuse to undergo medical treatment.
Held that it is a demonstrably justified limit to section 11 because the benefits of fluoridation outweigh the negatives effects of limiting the right. It is a minimal intrusion on section 11 because low levels of fluoridation used and there is no better alternative.
R v Hansen
2007, SC (NZ)
Mr Hansen was presumed to be a supplier of cannabis due to the quantity he was found with. He claimed that the reversed onus (presumed guilty) was a breach of NZBORA.
Set out the Hansen test:
(1) Determine PIM
(2) Is there a prima facie breach of NZBORA?
(3) section 5 - is the breach demonstrably justified?
(4) section 6 - is there a more rights consistent interpretation?
(5) section 4 - if no other alternative then apply PIM.
Applied the Oaks test to section 5: Determine why Parliament is limiting right in first place –> then if the way they have limited it is rational –> then if it is proportional (do the ends justify the means).
Held that the limit of presumption of innocence here is not justified because it is hard to catch drug dealers and this makes it easier, it is important to catch drug dealers because they are a bad influence, but it is not the most rational way to catch more drug dealers.
Held no alternative way to interpret the reversed onus and therefore PIM applies.
Ransfield v Radio Network
2005, HC (NZ)
R banned from talkback radio station and claimed it was a breach of NZBORA section 14 Freedom of Expression. Case is however premised on whether NZBORA applies to defendants, who are private actors.
Held that NZBORA does not apply to the private radio station even though it is a private company pursuant to law, they are not performing a public function because G does not have any ownership interest or control over the operation of their business.
Fitzgerald v R
2021, SC (NZ)
Fitzgerald was a schizophrenic and had lots of mental health issues. Within 10 years he had three similar instances of indecent assault, the final being kissing a stranger in the street. Under the introduction of the NZ three strike rule Fitzgerald was sentenced with 7 years of imprisonment.
Held this is not a demonstrably justified limit to NZBORA s9.
Parliament cannot have meant for three strike rule to apply to grossly disproportionate instances - read down Parliaments intended meaning.
Held that the Hansen test did not give enough emphasis to section 6. Justice Winkelman held that section 3 poses an obligation on the judiciary to try their absolute best to find a more right consistent meaning (or they themselves are breaching NZBORA).
Hansen is still valid but when we determine if there are any alternative meanings we strive really hard to find an alternative meaning, unless power is explicitly excluded by Parliament.
Re: Gordon
2019, HC (NZ)
T was placed in foster care with couple at age 2. The couple since separated but this did not affect care for T. T who is not 18 regards them as her parents and they regard her as their child. They are declined formal adoption because section 3 requires applicants to be spouses.
Held this is not a demonstrably justified limit.
Held that spouse must be read to include “former spouses” for the purposes of the adoption act because to assume that dissolved spouse will not continue to take responsibly and prove the same level of care and stability of children as a married couple is not justified.
Make it 16 Inc V AG
2022, SC (NZ)
Sought declaration that the voting age being 18 was inconsistent with NZBORA right not to be discrimination on the grounds of anyone aged 16 or older.
Held this is not a justified breach because AG gave no argument as to why age is 18 rather than 16.
Arguments from minority that this was a no go case for courts due to priviledge of comity - SC held it was ok.
No other way to interpret a number.
Drew v AG
2002, COA (NZ)
Prison inmate refused permission to have legal representation consistent to the regulations around penal proceedings (delegated legislation).
Held this was not lawful.
Court focused on the empowering provision allowing the regulations to be made and held that because section 6 states legislation must be interpreted consistent with NZBORA - it was ultra vires for the executive to create secondary legislation not consistent with NZBORA.
Therefore, if you find delegated legislation inconsistent with NZBORA they are automatically ultra vires.
Shows that natural justice is a flexible concept which adapts to particular situations.
Simpson v Attorney General
(Baigent’s Case)
1994, COA (NZ)
Police had warrant to search address and when they got there everything pointed towards there being a mistake of address as old women answered the door. The police nevertheless search house.
Held that even though the search was lawful the way the lawful power was exercised was unreasonable and therefore a breach of NZBORA reasonable search and seizure.
Case was important to show that monetary compensation is available in cases of NZBORA breaches where it is the only appropriate way to vindicate rights.
Rights need to be vindicated or else there is no incentive for public power to be exercised consistently with them.
Taylor v Attorney General
2015, HC (NZ)
2010 amendment to Electoral Act removed all prisoners rights to vote. Prior to being enacted it has been heavily flagged by AG as inconsistent with NZBORA.
Held that it was not a demonstrably justified limit and no alternatives interpretations available.
Court created its jurisdiction to issue a DOI saying that it was the only way that they could send a clear signal to P that the legislation is a problem.
What were the 2022 amendments to NZBORA:
7A = when the court issues a DOI and there are no further appeals available the AG must notify Parliament of the DOI
7B = The responsible Minister has to report back to Parliament within 6 months about what they are going to do about it
This now means that Parliament can no longer ignore DOI - still subject to PS and they don’t have to do anything substantial.
