NZBORA - cases focused on s5 and the Oakes test

Question 1

how to think of Oakes

Answer 1

a bunch of factors to have in mind when conducting a s5 analysis

don’t cite

Question 2

first question to ask when conducting a s5 analysis

Answer 2

1. Is the reason for the infringement or limitation important in a free and democratic society?

Question 3

first question to ask when conducting a s5 analysis

SUBPARTS

Answer 3

• what is the objective
• how important is it
• ## should public power be used like this

Question 4

second question to ask when conducting a s5 analysis

Answer 4

are the means used to pursue the object propertiante

Question 5

second question to ask when conducting a s5 analysis

2a

Answer 5

Is there a rational connection?

The measures must meaningfully contribute to the objective with a sufficient causal link.

Question 6

second question to ask when conducting a s5 analysis

2b

Answer 6

Does the provision minimally impair the right?

Assess how much the right is restricted.

If the same goal can be achieved in a way that impacts rights less, the provision likely does not meet the “minimal impairment” requirement, as less harmful alternatives should be used.

Question 7

second question to ask when conducting a s5 analysis

2c

Answer 7

Are the measures proportionate?

Do the benefits outweigh the harm to the right?
Balance the goal against the restriction to rights

Question 8

new health nz inc v south Taranaki district council

facts

Answer 8

local council fluoridating water, NH says breach of s11 right to refuse medical treatment

Question 9

was the breach justified as per s5 in new health nz inc v south Taranaki district council

Answer 9

reducing tooth decay is a sufficiently pressing and substantial issue, fluoride and tooth decay have rational connection, there is minimal impairment on s11 right, floride is a propitiate response

Question 10

new health nz inc v south Taranaki district council held

TARANKAI

Answer 10

breach of s11 demonstrably justified, minimal impairment can b found even if alternatives are present

Question 11

new health NZ v Dircetor gen

DIRECTOR GEN

Answer 11

• failed to consider rights in the decsion to flouridate water

Question 12

relief deciosn in new health NZ v Dircetor gen

DIRECTOR GEN

Answer 12

It was clear that the Director-General had never turned his mind to BoRA considerations when issuing the directions, and the decision was accordingly unlawful.

However, the court declined to grant relief, instead leaving it to the parties to agree on next steps.