NZBORA Cases Flashcards
R v Hansen
Facts:
- H caught with a large amount of cannabis – 2kg
- S 6(6) misuse of drugs act included a reverse onus provision
- If you have more than set amount of a drug, you are presumed to have intention to supply
- Breach of S 25(c) NZBORA, right to be presumed innocent until proven guilty
Held:
- Risk of innocent people being punished is too great so it is not a justified limit (s 5)
- But there is no other way to interpret it (s 6)
- So Parliament’s intended meaning must apply (s 4)
Arps v Police
Facts:
- Mr A is well known white supremacist
- After mosque shooting was sentensed for distributing the shooting videos
- Under s 9(1)(H) of Sentencing Act, distribution for hostility towards muslim people was an aggrivating factor
- Got a longer sentence
- Claimed freedom of expression
Held:
- Prima Facie Breach of FoE
- But it is justified under s 5
Make It 16 Inc v Attorney-General
Facts:
- Voting age in NZ is 18
- In electoral act
- No other interpretation available
- Claimed voting age of 18 limited right of freedom of discrimination under section 19 NZBORA (age)
Application:
- Is this limit demonstrably justified in a free and democratic society?
Held:
- Treatment was discriminatory and inconsistent with NZBORA
- By setting voting age at 18, parliament has discriminated against 16 year olds on the basis of age
- Parliament did not give any evidence to show this is demonstrably justifiable
- Did not satisfy Oakes test
- Issued a DoI
New Health NZ Inc v South Taranaki District Council
Facts:
- Taranaki started fluridating its water
- Good for teeth
- NHNZ – believe it is a health risk
- Local government act 2002 s 12 gives broad discretionary power to do anything to carry out role
- Breaches s 11, right to not be subject to non-consensual medical treatment
Held:
- This is a justified limit, so no NZBORA breach
- Passes Oakes test
- Protect dental health is pressing and substantial
- There is a rational connection, and minimum imparement compared to other options
- No real evidence it can hurt people
Majority:
- Interpreting s 12 properly allows all councils to flouridate their drinking water because parliament intended that councils should have this power
Minority:
- Must look at specific decision in question
- Lawfulness depends on evidence that this decision was needed to protect dental health in that specific region
New Health NZ Inc v Director-General of Health
Facts:
- NZBORA is a mandatory consideration
Held:
- Must re-consider
- Failure to consider NZBORA can be used to challenge a decision even if the decision is demonstrably justified
Re: Gordon
Facts:
- Ms Gordan and Mr Archer were married
- While married they became foster parents to Tiffany
- Devorced
- Tiffany later decided she wanted them to formally adopt her
Issue:
- Act said they needed to be spouses
- What does spouses mean?
- Breach of freedom of discrimination under section 19 NZBORA (marrital statuts)
Held:
- Applied alternative meaning under s 6
- Spouse interpreted to include former spouses
- Including former spouse does not subvert the intention / purpose of the act
Fitzgerald v R
Facts:
- F guilty of 3 indecent assaults
- This was deemed to be a third strike offence meaning he would get the max sentence
- He had mental health challenges and acted in inapropriate and wrong ways
- Breach of NZBORA – s 9, right not to be subject to disproportionately severe punishment
Held:
- This right is absolute, never ok to breach it
- This was inconsistant
- Courts interpreted “despite any other enactment” to not include NZBORA
- Parliament could not have intended to override a fundamental s 9 right
Cropp v A Judicial Committee
Facts:
- C a jockey
- Delegated Legislation
- These rules of racing prohibit jockey’s from having illegal drugs in their urine
- Require jockeys to undergo random drug tests when they are racing
- Ms Crop got selected for random drug test and she had meth in her urine
- Claimed breach of the right to be free from unreasonable searches, s 23 NZBORA
Held:
- Random search rule as applied to Mc Crop
- Not unreasonable search
- Within scope of empowering provision
Four Midwives v Minister for Covid-19 Response
Facts:
- Covid 19 public health response act
- Minister made order mandating vaccinations in order to work
- 4 Midwives did not want to get vaccinated
- Claimed breach of s 11 right to be free from un-consented medical treatment
Held:
- Orders can be made under 2nd legislation that limit NZBORA so long as this limit is justified as per s 5
- Because midwives had agreed it was justified, no breach / inconsistency with NZBORA
- Empowering provisions can only allow 2nd legislation to limit NZBORA rights if they are demonstrably justifiable in a free and democratic society – s 5 consistent.
Simpson v Attorney-General (Baigent’s case)
Facts:
- Police search warrent with wrong adress
- Were told of error
- Searched anyway
- Not trespass (has license to be there)
- Breach of s 21 right to be secure against unreasonable search
- Normal remedies could not help
- She was dead and search had already been carried out
Held:
- Monetary damages awarded
- This was the only way to vindicate her rights
Taylor v Attorney-General
Facts:
- Prisoners banned from voting
- Breach of s 12 NZBORA electoral rights
Held:
- This was an unjustified breach
- Decided to issue a DoI
- First case to do so
- The courts have their own sphere of sovereign authority
- Part of their judicial role
- However, remedy of last resort
Bullock v Dept of Corrections
Facts:
- Pōwhiri and gender
Held:
- “We are satisfied that the department expectations of the plaintiff when she attended the graduation (specifically, in that it expected she would not be a speaker, and it expected her to sit behind the men) amounted to detrimental treatment by reason of her sex: male employees employed on work of the same description as the plaintiff were not subjected to the same limiting expectations.”
Ministry for Primary Industries v Te Hira Charlie Ned Whati [2020]
Facts:
- Kai gathering without a permit
- Right to enjoy culture
- Right to enjoy cultural rights
Held:
- “Thus, to the extent cognisable in law, Mr Whati was exercising his s 20 right on 23 December 2016 to enjoy his long held cultural practice of collecting seafood for a minority community event.”
Police v Taurua
Facts:
- Application to have hearing on a marae
Held:
- S 20 cannot be a barrier to equality before the law
- Cannot enable someone to be treated in a culturally different way
What were the cases of Robin and Beaven about?
Moko kauae;
1. Denied entry into pub
2. Denied job at a café
NZBORA upheld, this is very much about their individual rights.
