NZBORA

Question 1

Steps for NZBORA question

Answer 1

1. is the body subject to NZBORA (s 3a and b)
2. what is PIM
3. Is a right being limited
4. Is the right demonstrably justified (s 5) (broad or narrow discretion)
5. where is the power coming from
6. is there alternative meanings (s 6) possible
7. remedies

Question 2

Step 1:

Answer 2

Is the body subject to NZBORA
(a) By the legislative, executive, or judicial branches of the Government of NZ; or
(b) By any person or body in the performance of any public function, power or duty conferred or imposed on that person or body by or pursuant to law.

Question 3

Test for 3(b)

Answer 3

Moncrief-Spittle
1. action is in performance of function power or duty
2. pursuant to law
3. public

Question 3

Step 2

Answer 3

what is parliaments intended meaning of the section

Question 4

Arps v Police

Answer 4

limiting his freedom of expression was rationally connected to stopping hate speech

Question 4

What is the steps of the Oakes test

Answer 4

1.Is the objective of the limit pressing and substantial (the why of the issue)

2. Is the way you are limiting a right…
   - rationally connected to objective
   - minimally impairing
   - proportional

Question 5

step 3

Answer 5

is that intended meaning inconsistent with a part right

Question 5

step 4

Answer 5

is the limit demonstrably justified in a free and democratic society (Oakes test)(Arps, New Health v Taranaki)

Question 6

Step 5

Answer 6

where is the power coming from

Question 6

New Health v Taranaki

Answer 6

There is minimal impairment in the right as there is a little increase fluoride and the other ways are more rights infringing.

Question 7

under step 5 secondary legislation

Answer 7

It is presumed that parliament would not authorise a regulation to be inconsistent with another piece or primary legislation, so if unjustified, ultra vires with NZBORA

Question 8

Cropp on secondary legislation

Answer 8

Random search rule as applied to C is not unreasonable search, and because it is not unreasonable it is consistent with NZBORA and therefore there is no reason to think parliament did not want it to happen

Question 9

Midwives case on secondary legislation

Answer 9

Where there is a general power to make secondary legislation in some enactment, that empowering provision can only be used to make secondary legislation that limits BORA rights in a way that is demonstrably justified. If the secondary legislation does not limit rights in that way, then that legislation is repugnant to the NZBORA.

Question 9

under step 5, prerogative power and third source

Answer 9

both subject to NZBORA

Question 10

what if the prerogative was unjustified

Answer 10

The exercise of the power must be justified under NZBORA s 5, otherwise it is unlawful (because the prerogative cannot be used in a way that is inconsistent with an Act of Parliament).

Question 11

step 6

Answer 11

If Parliament’s intended meaning limits a right in an unjustified way, can a rights consistent be taken

Question 12

What kind of meanings can be taken

Answer 12

Fitzgerald v R says we can try any option that could get a consistent meaning.

Question 13

examples under step 6 of a meaning being able to taken and not taken

Answer 13

Gordon: spouse could be interpreted to mean former spouse

Hansen: prove could not be interpreted to mean raise a reasonable doubt

Question 14

If no alternative meaning can be taken…

Answer 14

s 4 says we still apply the act (although maybe with a DOI)

Question 15

What remedies are available

Answer 15

1. Judicial review (NZBORA is mandatory consideration - New Health NZ v DG of Health)
2. Exclude evidence or stay proceedings
3. Award damages: Bagent’s Case: police searched wrong house; damage been done so none of normal JR remedies would help. Monetary damages the only way to vindicate rights
4. Declaration of inconsistency: AG v Taylor: DOI gives Parliament and the public a notice that the breach is unconstitutional. Despite controversy, SC held that it is within the court’s sphere to issue a declaration of inconsistency because this is an interpretive issue, the courts role is to declare the law.