NZBORA 1990

Question 1

Part 2 s 8

Answer 1

Right not to be deprived of life

Question 2

Part 2 s 9

Answer 2

Right not to be subjected to torture or cruel treatment

Question 3

Part 2 s 10

Answer 3

Right not to be subjected to medical or scientific experimentation

Question 4

Part 2 s 11

Answer 4

Right to refuse to undergo medical treatment

Question 5

Part 2 s 12

Answer 5

Electoral rights

Question 6

Part 2 s 13

Answer 6

Freedom of thought, conscience, and religion

Question 7

Part 2 s 14

Answer 7

Freedom of expression

Question 8

Part 2 s 15

Answer 8

Manifestation of religion and belief

Question 9

Part 2 s 16

Answer 9

Freedom of peaceful assembly

Question 10

Part 2 s 17

Answer 10

Freedom of association

Question 11

Part 2 s 18

Answer 11

Freedom of movement

Question 12

Part 2 s 19

Answer 12

Freedom from discrimination

Question 13

Part 2 s 20

Answer 13

Rights of minorities

Question 14

Part 2 s 21

Answer 14

Unreasonable search and seizure

Question 15

Part 2 s 22

Answer 15

Liberty of the person

Question 16

Part 2 s 23

Answer 16

Rights of persons arrested or detained

Question 17

Part 2 s 24

Answer 17

Rights of persons charged

Question 18

Part 2 s 25

Answer 18

Minimum standards of criminal procedure

Question 19

Part 2 s 26

Answer 19

Retroactive penalties and double jeopardy

Question 20

Part 2 s 27

Answer 20

Right to justice

Question 21

Part 1 s 3

Answer 21

Act applies to:
- 3 branches of government
- Anyone exercising public power
- Moncrieff v Spittle

Question 22

Part 1 s 4

Answer 22

Retains parliamentary supremacy

Question 23

Part 1 s 5

Answer 23

Is this inconsistency a justified limit under s 5?
Oakes test
1. Is the breach sufficiently pressing and substantial in a free and democratic society
2. Are the means to pursue the object proportionate?
- Arps v Police
- New Health NZ v South Taranaki District Council

Question 24

Part 1 s 6

Answer 24

If there reasonably a possible rights consistent (or more rights consistent) meaning it should be adopted.
- Re: Gordan
- Fitzgerald v R
- Cropp v A Judicial Committee

Question 25

Briefly outline Hansen test

Answer 25

s 3 - does NZBORA apply?

If so, Hansen test.
1. Parliament’s intended meaning
2. Prima facie breach
3. Is this inconsistency a justified limit under s 5? - Oakes test
- Arps v Police
- New Health NZ v South Taranaki
- District Council
4. If not, is there reasonably a possible rights consistent (or more rights consistent) meaning to be adopted? S 6
- Re: Gordan
- Fitzgerald v R
- Cropp v A Judicial Committee
5. If not, parliament’s intended meaning applies as per s 4
- Hansen

Remedies:
1. Declaration of Inconsistancy
- Taylor v AG
- Make it 16
2. Damages
- Baigent’s case
3. JR remedies
- New Health v Director-General of Health
- Air Nelson

Question 26

What is the Oakes test?

Answer 26

1. Is the objective of the limit “pressing and substantial”?
   - Is it important? Why are you limiting it?
2. Are the means:
   - Rationally connected to the aim
   - Minimally imparing - put the least restraint on rights possible
   - Proportionate

Question 27

What happens if another piece of primary legislation is inconsistant with NZBORA?

Answer 27

Section 4 NZBORA makes it clear that NZBORA cannot be used to invalidate or refuse to apply any other piece of legislation. If other enactments say something inconsistent, it still must be applied.

Question 28

What case sets out the test for breaches of NZBORA?

Answer 28

R v Hansen.

Question 29

Which approach in New Health NZ was right?

Answer 29

Geddis thinks the minority.
- Doesn’t make sense to ask whether it gives right to breach rights in every circumstance
- We should instead be asking, can they breach the right in that specific circumstance

Question 30

Can failure to consider NZBORA be a JR ground?

Answer 30

Yes. Does not mean there needs to be a full Hansen test but must turn their mind to it.

Question 31

What remedies can you get for a breach of NZBORA?

Answer 31

1. Standard JR remedies
2. Exclude evidence or stay proceedings
3. Damages
   - Baigent’s case
4. Declaration of inconsistency
   - Taylor
   - Re Gordon

Question 32

What is the key rights impacted in claims by Māori?

Answer 32

Section 19 – freedom from discrimination and section 20 - rights of minorities

Question 33

Why don’t māori use NZBORA as much?

Answer 33

Fleur Fitzsimmons article:
- NZBORA also engages with individual rights, and maori more likely to feel that rights extend beyond them
- NZBORA also does not cover all the rights Māori should have