rights Flashcards
what does Ivison say human rights are
enforceable moral claims
what does Dworkin say about human rights
human rights occupy a space in political discourse above that of ordinary political decision - human rights trump other legitimate political decisions
who does Campbell say can claim human rights entitlements
individuals and perhaps groups
is rights being attached to the individual a western concept
yes - tikanga and te ao maori has collective rights through utu and mana which work in terms of the group as well as the individual. many cultures place greater emphasis on social dynamics outside of the individual and on the group
what else could be the subject of rights other than individuals or groups
non-traditional legal persons or non-legal persons such as natural features e.g. the Whanganui River or South American forests
who is it that we as the subject of human rights can make claims about
other people and organisations but most of the time it is protection of abuse by governments or ruling bodies in power. NZBORA applies to actions done by branches of government but not other groups or individuals in society. This limitation is not without problems as corporations functionally possess an enormous amount of power and have the same ability as government to impact on human rights - e.g. oil companies in developing parts of the world
what is campbells quote on what human rights are
“rights are claims to entitlements that individuals (and perhaps groups) can justifiably make on other people and organisations”
what is contained in the US Declaration of Independence as an early recognition of the kinds of things we recognise as human rights today - life, liberty and the pursuit of happiness
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are, life, liberty, and the pursuit of happiness”
what are 7 ways human rights can arise
- universal
- social
- equal
- individual
- enforceable
- plural
- moral
what defines the ontology of rights
describes where they come from and how they obtain their enforceable quality
what are the main two ways it can be said we got rights
moral claims or depend on law for their existence
what is the difference between a formalist view of rights and a natural law form
rights depend on law: human rights are legal rights bestowed on a person by a legal system so they can be modified, repealed or restrained through law.
rights exist as a necessary condition of nature and are inherited through lineage to a God creator or another informative deity.
does the language of NZBORA purport to create rights itself
it says “affirm” - which presupposes the rights already exist somewhere - in international rights frameworks and also as a philosophical pre-existence
do individual vs collective/group rights clash?
individual rights are universal and apply to everybody, but not all cultures will accept this universality. In the vast majority of cases, rights attaching to the individual are not inconsistent with the rights certain cultures place on the collective, but they can clash. Whether individual rights prevail depends on cultural relativism. Individually based human rights can be a worthy starting point on which other conceptions of rights can be built upon - especially a starting point for basic minimum rights
what are 4 examples of the civil and political generation of rights
- the right to life and liberty
- freedom of expression
- equality before the law
- the right to be free from discrimination
what are 4 examples of the economic, social and cultural generation of rights
- the right to participate in culture
- the right to work
- the right to an adequate standard of living
- the right to education
what generation of rights is recognised in NZBORA and why
civil and political rights - they are not necessarily more important but are a baseline minimum standard for a given society to function in a liberal and democratic way - they are fundamental attaching to the body and persons
what happened in Guantanamo Bay and why does it show the need for human rights
Potential terrorist threats were detained here following 9/11, imported from placed like Afghanistan and left to rot. Some only had the most nebulous of links to actual terrorists. It is in a part of Cuba which the US still has some rights over. The detainees were detained indefinitely and were deprived of the most basic right to habeas corpus (detained without trial).
From a human rights perspective, being held indefinitely without trial, given no right to a lawyer, not given a way to practice religion and could be persecuted for it, subject to physical and psychological abuse (“enhanced interrogation”). Even with these generally agreed human rights protections, very real human rights abuses are a part of this world.
how is new zealand’s track record with human rights
good record.
world leaders:
- votes for women in 1893
- international labour organisation created for the protection and advancement of workers’ rights
- abolished capital punishment for murder and piracy in 1961 and for treason until 1989
- same sex marriage 2013
what did the UN Human Rights Council have to say about NZ in 2014
- in consultation, develop plan to target gender-based violence and violence against women
- allocate resources to ensure the full implementation of measures to prevent violence against women and children
- develop national plan for women to address violence, pay equality, disability, Maori and Pacific women issues
- further steps to advance indigenous human rights, reduce remaining social differences for and discrimination against Maori
- prevent discrimination more against Maori and Pasifika community members in criminal justice system and in particular around the high rates of incarceration
what did the UN Human Rights Council have to say about NZ in 2019
- continue to address violence against women including sexual and domestic violence
- develop strategy to combat gender based violence including sexual and family
- strengthen efforts to address violence against women and girls among minority communities, particularly Maori and Pasifika
- continue efforts to address child wellbeing including addressing child abuse and child poverty
how do we protect human rights
international human rights protections - international law instruments to which we are signatories and courts can refer to those when scrutinising government decisions
domestic legislation owes its existence to the earlier pieces of international law and reflects our commitment internationally by making them enforceable at home
what is the universal declaration of human rights 1948 - give article examples
it sets the ground work and these rights form the basis of many rights that receive special treatment in later instruments. It is not legally binding in principle but the ICCPR and ICESCR are. Later instruments affirm and expand upon the rights in it.
Article 1: we are all born free and equal. we all have our own thoughts and ideas. we should all be treated in the same way.
Article 2: these rights belong to everybody, whatever our differences.
Article 3-21: civil and political rights, e.g. article 5 - nobody has any right to hurt us, or to torture us.
Article 22-27: economic, social and cultural rights, e.g. article 27 - we all have the right to our own way of life and to enjoy the good things that science and learning bring.
what is the International Covenant on Civil and Political Rights 1966 (ICCPR)
it is almost universally adopted, with 170/193 un nation states signed and ratifying it. its preamble ties it to the UDHR and links to its sister instrument the ICESCR.
It establishes the United Nations Human Rights Committee - reviews reports from states about how rights are being implement there and provides a dispute resolution body for citizens of the state parties (if the state signed up to the optional protocol for that). the second optional protocol is the abolition of the death penalty. nz has adopted both.
what is the International Covenant on Economic, Social and Cultural Rights
it also has overwhelming support with more then 170 signatories including us. its preamble mirrors the ICCPR and it seeks to protect labour, work, education and adequate standard of living rights.
it establishes its own oversight body - the UN Committee on Economic, Social and Cultural Rights. A single optional protocol establishes an individual complaints mechanism.
It hasn’t received nearly the same about of domestic buy-in as the ICCPR provisions. A telling example is that the USA have signed but not ratified this agreement.
what are some other notable human rights treaties
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
Convention on the Rights of the Child (UNCROC)
Declaration on the Rights of Indigenous Peoples (UNDRIP)
Convention on the Rights of Persons with Disabilities (CRPD)
what are customary international human rights
these include prohibitions on torture, genocide, slavery, arbitrary detention and systematic racial discrimination. it provides for prohibitions on really fundamental things which are considered part of the international law independent of treaties. they can bypass the dualist model where a nation state signs up to international law obligations but they only become binding when incorporated into domestic legislation at home - they are binding without express recognition in a domestic instrument. These prohibitions are also in agreements which the vast majority of states have signed up to, which is a big overlap
what is the dualist model for making international law obligations binding at home
we sign up to international law obligations but they only become binding when incorporated into domestic legislation at home. this is because of parliamentary sovereignty - parliament has to bring into law what the executive has agreed to overseas
what are 5 notable domestic bills of rights and constitutions
Bill of Rights 1689 (England)
Bill of Rights of the Unites States Constitution 1791
Canadian Charter of Rights and Freedoms 1982
New Zealand Bill of Rights Act 1990
Victorian Charter of Human Rights and Responsibilities 2006
what did the Bill of Rights Act 1689 (England) grant in way of human rights
- habeas corpus
- basic protection from the monarch’s actions
- qualified element of freedom of speech - the right to have free speech in Parliament as against the King
- otherwise mostly for constitutional matters but there are a few rights here
what are the first and second amendments of the Bill of Rights of the unites States Constitution, how many amendments are there total
1 - freedom of expression
2 - right to bear arms
10 amendments total - law can be struck down if found to be unconstitutional
how are rights in each of the following documents looked after in NZ (by which institution):
- common law
- new zealand bill of rights act 1990
- human rights act 1993
- crimes of torture act 1993
- privacy act 1993
- treaty of waitangi
- ordinary courts
- human rights commission
- human rights review tribunal
- asia pacific forum
- privacy commissioner
- waitangi tribunal
what rights does the common law protect
basic ones like the right to habeas corpus (to be brought before trial) that exist without the need for statute. there is, however, lots of overlap with what’s included in or developed further by statute
what does the Crimes of Torture Act demonstrate
that we are meeting our international law responsibilities by reinforcing the general right to be free from torture by creating the ability to prosecute torture where it occurs - actively prosecuting is another part of the international obligation. it also establishes the National Preventive Mechanism, an optional protocol to monitor detention centres and prisons
what rights does Te Tiriti protect
the right’s of Maori, which the Waitangi Tribunal helps to enforce as well as advising around those issues
what was the 1985 Government White Paper by Sir Geoffrey Palmer and how did it come about
this showed a change in thinking in executive power between Muldoon’s national government through to the Lange government that turned into the Palmer government. As the Minister of Justice under the Lange government, Palmer created a government white paper entitled ‘A Bill of Rights for New Zealand.” This was a reaction to what Palmer termed ‘unbridled power,’ the exercise of executive power without reigns such as in the Muldoon government. It’s purpose was to give effect to the ICCPR obligations.
what is a government white paper
a report to show why legislative change should be brought about and how it should be effected
why was the white paper for NZBORA bittersweet
it didn’t do all that it could have done - it could’ve been radical but it ended up more milk toast
what things were suggested by the nz law society to be included in the nzbora but didn’t end up being
- entrenchment - makes it more difficult to do away with by requiring a super majority etc. But, this could be seen a binding a future parliament. but courts would be unlikely to uphold an entrenched provision within an enactment that wasn’t created with that super majority
- inclusion of Te Tiriti as a feature of the rights act - concerns by tangata whenua that rather than standing alone in our constitution it could be amended in some way because of being an ordinary statute
- power for judges to strike down legislation inconsistent with the provisions of the act - this was in the canadian charter on which all of this was loosely based but the labour government couldn’t get the support required
the bill of rights act is to:
- to affirm, protect and promote human rights and fundamental freedoms in new zealand; and
- to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights
what are the 4 categories of civil and political rights
- life and liberty of the person (ss 8-11)
- democratic and civil rights (ss 12-18)
- non-discrimination and minority rights (ss 19-20)
- rights in relation to search, arrest and detention (ss 21-27)
what is nzbora s9
right not to be subjected to torture or cruel treatment - everyone has the right not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment
what are some rights in the life and liberty of the person NZBORA sections (8-10)
right not to be deprived of life, free from torture, free from scientific experimentation, to refuse to undergo medical treatment
what are some rights in the democratic and civil rights section of the NZBORA (12-18)
freedom of expression, electoral rights, culture and religion, manifestation of religion and belief, peaceful assembly, association and movement
what is s14 NZBORA
freedom of expression - everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form
what are some rights in the non-discrimination and minority rights sections of NZBORA (19-20)
freedom from discrimination, rights of minorities
what is s19 NZBORA
freedom from discrimination, 1 - everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
what are some rights in relation to search, arrest and detention in NZBORA (21-27)
unreasonable search and seizure, liberty of the person, rights of persons arrested/detained or charged with a criminal offence, right to a fair trial, to consult a lawyer, double jeopardy (not being tried/punished multiple times for the same offence), retroactive penalties, general right to justice
what is s25(c) NZBORA
minimum standards of criminal procedure - everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights.
(c) - the right to be presumed innocent until proved guilty according to law
whats missing in the NZBORA
contains most but not all ICCPR rights. In the ICCPR but not here include: general right to equality, rights relating to protections of the family and physical privacy, no real mention of any second generation rights or nay third generation rights like rights that the environment in a broad sense might have
what are some examples of more different rights in other states constitutional documents
charter of human rights and responsibilities act 2006 (VIC) - cultural rights
constitution politica de la republica de chile 1980 - right to live in a clean environment
what was suggested for NZ in the UN Human Rights Council - second periodic review 2014 by other nations
- written constitution
- fully incorporate international human rights instruments to which it is a party in its domestic framework
- incorporate economic and social rights in its human rights charter
- incorporate economic, social and cultural rights in its Bill of Rights Act
- incorporate economic, social and cultural rights in the Bill of Rights of 1990, while taking measures to ensure that the competent authorities review the bills, regulations and policies so that these are compatible with the provisions of ICESCR.
- economic, social and cultural rights in review of Bill of Rights Act 1990
what was the UN Human Rights Committee Observation on NZ in 2016
The Committee notes that the Bill of Rights Act 1990 does not reflect all the rights enshrined in the Covenant and that the Act does not have, in domestic law, the status of entrenched law. The Committee also notes that laws adversely affecting the protection of human rights, such as the Criminal Investigations (Bodily Samples) Amendment Act 2009, have been enacted, notwithstanding the fact that the Attorney-General has reported that they are inconsistent with the Bill of Rights Act 1990 (art. 2).
what did the New Zealand Constitutional Advisory Panel 2013 recommend
- add economic, social and cultural rights, property rights and environmental rights
- improve compliance by the executive and parliament with the standards in the Act
- give the judiciary powers to assess legislation for consistency with the Act
- entrench all of parts of the act
what is the New Zealand Constitutional Advisory Panel
a panel put together to do reporting on constitutional reporting on the question of rights
what are the operative provisions of the NZBORA
3, 4, 5, 6, 7
what is s3 NZBORA
bill of rights only applies to acts done:
a. by the legislative, executive, or judicial branches of the government of new zealand; 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
what is s4 NZBORA
other enactments not affected:
no court shall, in relation to any enactment (whether passed or made before or after the commencement of this bill of rights) -
A. hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
B. decline to apply any provision of the enactment - by reason only that the provision is inconsistent with any provision of this Bill of Rights
what is s5 NZBORA
justified limitations - subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society
what is s6 NZBORA
interpretation consistent with Bill of Rights to be preferred - wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning
what is s 7 NZBORA
Attorney General to report to Parliament where Bill appears to be inconsistent with Bill of Rights -
Where any Bill is introduced into the House of Representatives, the Attorney-General shall, -
a. in the case of a Government Bill, on the introduction of that Bill;
b. in any other case, as soon as practicable after the introduction of the Bill, -
bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights
who is David Parker
our Attorney-General and Minister for the Environment as well as being associate Minister for some other things
what is the relationship between the Attorney-General and the Solicitor-General
Attorney-General is a lawyer, the principal/senior law officer of the Crown. The Solicitor-General is their junior counterpart
what are the Attorney-General’s two primary roles within government and how are they created
created by convention not statute:
- They are the Minister of the Crown responsible for the investigative bodies the SFO, Crown Legal Office and Parliamentary Counsel Office
- As a senior law officer of the Crown, they are responsible for ensuring the operations of government are conducted lawfully and constitutionally
what is the purpose of s7 NZBORA
serves to soften the blow of s4 that inconsistent legislation must prevail and the necessary effect it has of removing any power of the Courts to strike down legislation
even if a s7 notice doesn’t prevent enactment of legislation, what can it do?
it represents a publicly viewable form of political accountability. it acts as a check to Parliament enacting legislation in ignorance of these rights. AG is the first line of defence
a legislative proposal that goes to cabinet must contain an indication of whether or not there will be an inconsistency with NZBORA. It is sent to Crown Law and what happens there
- vetted - no inconsistency with NZBORA, doesn’t need to be tabled before parliament at the bills introduction
- s7 report produced - does potentially have inconsistency, needs only to be made if they consider the potential infringement is not a s5 justified limitation
what is the status of an AG report
they’re not binding on parliament and parliament may form a different view about whether the right has been limited and if it might be justified - at least the s7 report has the effect of ensuring Parliament makes decisions with full knowledge and proper consideration of the issues
what are the spikes in s7 reports likely due to over the years
2000 - new Helen Clarke labour government
2009/10 - new John Key national government
They have a lot of legislation to push out at the start and the large political swing = issues
what rights are overrepresented for having s7 reports written which might affect them
s14 - freedom of expression
s19 - freedom from discrimination
these have the broadest and widest scope and coverage
of the s7 reports relating to the s19 right of non-discrimination, how many come from each discrimination category
7 sexual orientation
6 - age
6 - marital status
3 - gender
3 - family status
3 - disability
2 - race, colour & ethnic origin
S5 and 6 were always intended to be in NZBORA. If, as initially proposed, the courts had a power to strike down inconsistent legislation, what would this have meant for these provisions
a legislative infringement could be looked at to see if it was justified under s5 before striking it down. s6 could also be used to look for a rights consistent meaning that could be adopted so that the inconsistency with the NZBORA vanishes and there is no need to resort to the striking down power
what does our NZBORA having s4 mean for s5 and s6
failing everything else, legislation inconsistent with NZBORA must still prevail. the current approach is that courts ask whether the limitation on that right is justified under s5. if they find it is not justified from its ordinary meaning they go to s6 and ask whether there is some different rights consistent meaning we can reach. if the limitation is justified we don’t have to go to s6.
what was the post Moonan, prior to Hansen, approach to the operative sections of the NZBORA, that we no longer use
start by interpreting allegedly inconsistent law in a rights consistent way through s6. look whether that represents a reasonably justified limit on the right by s5. even if the limit is reasonable, it uses its rights consistent interpretation (rather than its plain meaning) because they did this part first
what was the reverse onus of proof in Hansen v R
s6(6) Misuse of Drugs Act 1975 - a person is presumed until the contrary is proved to be in possession of [cannabis] for [the purposes of supply or sale] if he or she is in possession of [cannabis] in an an amount, level, or quantity at or over [28g or 100 cigarettes]
Hansen is presumed to possess his quantity for supply until the contrary is proved
what was the right potentially affected in Hansen v R
the presumption of innocence - NZBORA s25(c) - everyone who is charged with an offence has, in relationship to the determination of the charge, the following minimum rights: … the right to be presumed innocent until proved guilty according to law
what was Hansen’s argument in Hansen v R
“until the contrary is proved” meant that Hansen only needed to raise ‘a reasonable doubt’ that he possessed the cannabis for sale or supply (an evidential burden) and not that he needed to prove on the balance of probabilities that he did not possess the cannabis for sale or supply (a legal burden) because Section 6 of NZBORA required this interpretation of s6(6) of the Misuse of Drugs Act 1975, because otherwise the presumption was inconsistent with the right to be presumed innocent until proved guilty
what is the Hansen approach to using sections 4, 5 and 6 of the NZBORA
- identify the natural meaning of the legislation (ignoring s6) and consider how it impacts on the circumstances of the case
- consider whether this creates an inconsistency with a prima facie right or freedom (if not, adopt the natural meaning)
- if there is an inconsistency, consider whether the inconsistency is “justified” (under s5)
- if that inconsistency is justified, adopt the natural meaning
- if not, consider whether a meaning that does not unreasonably limit the right or freedom is available (as required by s6)
- if so, adopt it. If not, adopt the natural meaning (s4)
what was Elias CJ’s view in Hansen, dissenting from the majority
In my view, consideration of s 5 does not arise on the present appeal. The appeal is determined by the application of s 4 once it is accepted that s 6(6) of the Misuse of Drugs Act cannot be given a meaning which is consistent with s 25(c). In those circumstances, it is unnecessary to express any view on the question whether the Court may formally determine whether a limit is justifiable under s 5…
- she thought s 5 was limited in application to the AG’s role under s 7 because they only make a report if they consider the limitation on the right is not justifiable
- she thought: start with s 6 - consider the absolute formal version of the right rather than the restricted version under s 5
what were the facts of Re Application by AMM and KJO to adopt a child
a hetero couple were not married but were in a long term relationship. the mother had had a child through the sperm donor programme and so was a legal parent. the partner had a large role in raising the child and they wanted to make the partner a legal parent. if an application was made only by the partner the mother’s status as a legal parent would be terminated, so they had to submit a joint application.
however, s 3 Adoption Act allows ‘spouses jointly’ to have an adoption order made to them. the natural meaning of this section was a married couple, but that was inconsistent with a NZBORA right - freedom from discrimination based on marital status (s19). The court didn’t really discuss whether it was a justified limitation under s 5 because the Attorney-General had said they accepted it did not amount to a justified limitation.
how do we determine if a limitation on a right is justified?
proportionality inquiry from R v Oakes in the Supreme Court of Canada:
- does the limit pursue a sufficiently important objective to warrant overriding a protected right?
- is the means chosen to achieve the objective proportional?
- is there a rational connection between the limit and the objective?
- is there a minimum impairment of the right
- overall, is the limit proportional to the objective being pursued
what is the essence of the R v Oaks proportionality test, as given by Tipping in Moonan
a sledgehammer shouldn’t be used to crack a nut
did Hansen meet the proportionality test for it to be a justified limitation on the right as from R v Oakes
- sufficiently important objective - yes, social objective of successfully prosecuting drug dealers.
- proportional? no
- rational connection of limit with objective? yes, easier prosecutions as a result of reverse onus will reduce drug dealing
- minimal impairment? no, legal burden impairs right to presumption of innocence more than is reasonably necessary to achieve objective
- proportionality? no, s 6(6) is a disproportionate response to the societal concern
what did the majority in Hansen outline as the considerations for what the boundaries of applying NZBORA s6 are
- process must be done in accordance with general principles of statutory interpretation, most importantly the purposive approach. For a rights consistent interpretation to be reasonably possible, it must broadly keep with the intents and purposes of the act
- legislation used to have to be ambiguous before s6 could be used, this is no longer the case
- the meaning to be chosen must be available (reasonably possible) - a meaning that is fair, open, tenable and intellectually defensible
what did Elias CJ have to say about applying s 6 NZBORA in Hansen(not the law though, as she dissented)
“the direction to give an enactment a meaning that accords with the rights and freedoms contained in the New Zealand Bill of Rights Act where such interpretation “can” be given may as equally entail an interpretation which “linguistically may appear strained,” as where such interpretation is “possible.””
could a rights consistent meaning be found in the Adoption case
“we conclude that a meaning more consistent with the right to freedom from discrimination can be found. It is to interpret “spouses” as including de facto couples of the opposite sex. Although not the meaning that was intended at the time of enactment, it is a meaning that is consistent with the purposes of the Act, is not a strained meaning of “spouse”, and is workable within the other parts of the Act. It will have quite limited consequences beyond the area of adoption”
what was the United Nations Human Rights Committee’s reaction to Hansen
“the Committee is concerned that the finding of the presumption of innocence in criminal legislation related to drug possession by the Supreme Court has not led to amendments of the relevant legislation … the State party should expedite the adoption of amendments to the Misuse of Drugs Act 1975, with a view to ensuring compatibility with articles 9 and 14 of the Covenant and ensuring the right to be presumed innocent”
in what two ways can s6 of the nzbora be used
- to choose between two distinct meanings
- to read down open-ended administrative powers to limit the extent of powers which allow for the infringement of rights
how did the courts get their power to make a declaration of inconsistency
- not through statute at all
- until 2017 they wouldn’t
- they had made a number of ‘Hansen’ declarations over time (an informal statement buried within the greater hansen approach and following from that analysis)
- came from Attorney-General v Taylor
what did Attorney-General v Taylor (Glazebrook and Ellen France JJ - majority) have to say about the courts power to issue a formal declaration of inconsistency
“Contrary to the submission of the Solicitor-General that the making of a declaration does not fit with the language and legislative history of the Bill of Rights, we see the making of a formal declaration as a logical step from the settled position outlined above. That is, that an effective remedy should be available for a breach of the Bill of Rights and the courts can draw upon the ordinary range of remedies to provide such a remedy”
what did Taylor v Attorney-General concern
amendments which changed it from prisoners serving more than 3 years not being able to vote to a blanket ban of all prisoner’s not being able to vote
how did Dame Sian Elias CJ take it further in Attorney-General v Taylor
- left open the prospect of other remedies or damages.
“The innovation accomplished by s 3 of the New Zealand Bill of Rights Act is its recognition that inconsistency with the enacted human rights may be as a result of legislation. Section 4 is a precise provision which requires inconsistent legislation to be observed (at least if breach of the New Zealand Bill of Rights is the “only” reason for invalidity). It leaves open what other relief may be appropriate. Declaration seems to me to be an obvious remedial response available to the Court given s 4 where legislative limitation is not justified”
what happened in Borrowdale v Director-Genera of Health
- judicial review proceedings alleging that the early status of the COVID-19 “lockdowns’ was illegal - announcements made by the Prime Minister differed from the first order which didn’t require people to stay home in their bubble.
- a declaration of inconsistency was issued for this first issue only, in respect of the state of affairs created by the Prime Minister’s announcements during the first 9 days of lockdown (between 23 March and 3 April)
- borrowdale was unsuccessful on other challenges advanced: various subsequent orders under the Health Act and the definition of an essential service
which provision of the UDHR allows for remedies
article 8: everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law
which provision of the ICCPR allows for remedies
article 2(3)
each state party to the present covenant undertakes:
a. to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
b. to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
c. to ensure that the competent authorities shall enforce such remedies when granted
what is the rationale behind providing effective remedies
- compensation for harm done
2. deterrent on the state for abusing its power and committing human rights abuses
what are some NZBORA remedies in criminal proceedings
- exclusion of evidence, where it has been obtained in breach of NZBORA - rule it inadmissible
- for very serious breaches, criminal proceedings may be stayed/discharged
what are some NZBORA remedies in judicial review
- can set aside an administrative decision if the decision maker failed to properly consider all that is relevant, including NZBORA where a right/freedom is engaged
how can damages be an NZBORA remedy
Simpson v Attorney-General (Baigent’s case)
- police issued warrant to search address for drugs
- executed warrant at wrong address, spoke to Baigent’s son who showed passport and his sister, a lawyer, talked to police on the phone but they said they will have a look around anyways
- family sued Crown for breach of right to be free from unreasonable search and seizure
- Court upheld award of damages - there was an international law jurisdiction to provide effective remedies which could extend to damages, particularly because there was nothing to charge Mr Baigent will so it was the only remedy - usually the remedy would be to exclude evidence
what changed over time to the Human Rights Act 1993
- initially only applied in a private law context (various employment contexts, provision of goods and services, housing tenancies etc)
- since 2001, it also applies to actions done in the public sector
what is the purpose of the Human Rights Act 1993
An Act to consolidate and amend the Race Relations Act 1971 and the Human Rights Commission Act 1977 and to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Huaman Rights
how is discrimination defined in the HRA
- not defined in HRA nor NZBORA - take a purposive approach - the meaning of the word discrimination as used in the HRA needs to be ascertained by reference to the text and purpose of the HRA
what are the key facts of Ministry of Health v Atkinson
Mr Atkinson was the parent of disabled children and involved in their day-to-day support and care. The Ministry of Health policy was to exclude family members from being able to receive payments for disability support services to their children while a non-family member could receive payment. The reason was that by paying family members to take care of their children, which is a moral obligation anyways, parents could use the money inappropriately or piggyback on the disability
Atkinson complained to the Human Rights Commission, which went onto the Human Rights Review Tribunal - alleging the policy breached s 20L HRA and s 19 NZBORA and represented unjustified discrimination on the grounds of family status.
The tribunal agreed with this complaint - upheld in HC. The Ministry was granted leave to appeal to the Ca
what two questions of law was the CA asked to solve in Ministry of Health v Atkinson
- whether the HC had misapplied the test for a justified limitation under s 5 NZBORA
- whether the HC had correctly stated and applied the test for discrimination
what was the test consolidated in Ministry of Health v Atkinson
… we consider that differential treatment on a prohibited ground of a person or group in comparable circumstances will be discriminatory if, when viewed in context, it imposes a material disadvantage on the person or group differentiated against.
what are the 4 key elements of the Atkinson test
- differential treatment
- prohibited grounds
- comparable circumstances
- material disadvantage that follows as a result
what is the Atkinson two step test
- is there differential treatment or effects as between persons or groups in comparable situations [comparator group] on the basis of a prohibited ground?
- does that differential treatment result in material disadvantage?
what are the prohibited grounds of discrimination under HRA s 21
for the purposes of this Act, the prohibited grounds of discrimination are:
a. sex, which includes pregnancy and childbirth
b. marital status
c. religious belief
d. ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions
e. colour
f. race
g. ethnic or national origins, which includes nationality or citizenship
h. disability
i. age
j. political opinion, which includes the lack of a particular political opinion or any political opinion
k. employment status
l. family status
m. sexual orientation, which means a heterosexual, homosexual, lesbian or bisexual orientation
what is ‘differential treatment’?
treating one person differently from another
what happened in McAlister v Air NZ Ltd
McAlister was employed as a flight instructor and senior pilot, primarily for long haul Boeing 747 flights. The US has a rule which prohibits any pilot over 60 being a pilot in command, which applies to a large portion of flights which have the US as a destination or a point in the US as a transit point. Air NZ followed suit and McAlister was demoted to first officer at 60 and he brought a case against Air NZ for discrimination on the basis of age.
the main issue was understanding what the appropriate comparator group was. the SC said it was other pilots who were not yet 60, making it clearly discrimination (because of differential treatment).
what is the test for finding a comparator group out of McAlister v Air NZ Ltd
look for the group with the exact same circumstances but without the characteristic/feature for the alleged ground of discrimination
what were the comparison groups in Atkinson
those persons who are able and willing to provide disability support services to the Ministry vs parents who want to provide disability support services to the Ministry
what is material disadvantage
- no additional guidance as to what they meant by ‘material’
disadvantage is a common sense judgement call - financial disparity is a clear disadvantage and may include career progression or a lack of choice in choosing services
what is indirect discrimination
s 65 - where any conduct, practice, requirement, or condition that is not apparently in contravention of any provision of this Part has the effect of treating a person or group of persons differently on 1 of the prohibited grounds of discrimination in a situation where such treatment would be unlawful under any provision of this Part other than this section, that conduct, practice, condition, or requirement shall be unlawful under that provision unless the person whose conduct or practice is in issue, or who imposes the condition or requirement, establishes good reason for it
what is indirect vs direct discrimination
indirect = effect is discriminatory, even if that’s not the purpose
direct = occurs where the purpose of the measure is discretionary
what happened in Quilter v Attorney General
several couples in long term lesbian relationships wanted to get married as the Marriage Act didn’t allow. The court accepted the Marriage Act originally meant to apply to heterosexual couples and the court didn’t think they could reach another interpretation.
the majority (3-2) held it wasn’t discriminatory. they considered there was no direct discrimination because no one can marry anyone of the same sex and therefore same sex couples are treated no differently from any two people that want to get married. however, in reality, the prohibition on same sex marriage applies to all, but impacts disproportionally on same sex couples.
what does s 73 say about measures to ensure equality/positive discrimination/affirmative action
- anything done or omitted which would otherwise constitute a breach of any of the provisions of this Part shall not constitute such a breach if -
a. it is done or omitted in good faith for the purpose of assisting or advancing persons or groups of persons, being in each case persons against whom discrimination is unlawful by virtue of this Part; and
b. those persons or groups need or may reasonably be supposed to need assistance or advancement in order to achieve an equal place with other members of the community
in what situations is discrimination prohibited
Part 2 - how the act applies - discrimination is prohibited in a wide range of areas of the private sector (employment, education, public places, vehicles, land, housing, accomodation, unions, partnerships) and the HRA has an overall wide reach and since 2001 applies to a lot of things the state does in its interactions with society
what does part 1A of the HRA do
extends the scope to include public sector actions, allow complaints to be made to various bodies created by the HRA and allows claims for alleged discrimination for all state activities
what is s 20I HRA
purpose of the new part 1A - extends to groups mentioned in section 3 of the NZBORA - the three branches of government and anyone exercising a public power function
what is s 20L HRA
breach clause - the standard by which discriminatory acts of government should be assessed - the conventional standard for discrimination but including the aspect of a section 5 justified limitations - discrimination is allowed if it can be demonstrably justified in a free and democratic society
what did the court in Atkinson say about whether it was a justified limitation and what was the sad ending to the Atkinson case
the policy of the Ministry was not a justified limitation - it wasn’t proportional and wasn’t a minimal impairment on the right - they could have made an accreditation programme that if parents got it they would be paid the same as 3rd party carers who also had to get it to infringe on the rights more
sadly the government legislated that policy into legislation, allowing little to be done
what pre-court bodies can be used for a breach of the HRA as a remedy
Human Rights Commission - they operate as a dispute resolution process and they provide human rights programmes and educational campaigns. they use alternative resolutions like mediation, restorative justice, settlement for compensation, undertakings, apologies etc.
Human Rights Review Tribunal - HRC claims get escalated to this quasi-judicial body. They deal with claims under the HRA, Privacy Act and Health and Disability Commissioner Act. Claims are heard in front of a constituted tribunal of one chairperson and two other panel members. It operates like an adjudicative court but has some inquisitorial powers. Their decisions can be appealed to the general courts
what specific remedies, other than the HRC and HRRT, are there for HRA breaches
For breaches in policy/practice:
Remedies are general, can include compensatory damages awarded for losses actually incurred (often injury to feelings, humiliation, loss of dignity) and they are modest - $350,000 is the upper limit, the same as the DC.
S 92I lists the remedies the HRRT can award outside of the context of discriminatory legislation.
Discriminatory legislation:
- the only remedy is a Taylor like declaration of inconsistency, given by a statutory power under the HRA in s 92J. If this declaration is made, the Minister responsible for the enactment must report to parliament detailing that there has been this declaration made by the tribunal/court and what the government’s response will be
