Rights Flashcards
Hansen approach step 1
Identify parliaments intended meaning (natural meaning)
Step 2
Is the meaning inconsistent with a relevant right or freedom
(If discrimination add Atkinson)
Step 3
if apparent inconsistency is found at step 2,
Can the inconsistency be reasonably justified under s5
Step 3, Oakes approach
- Does the limit purse a sufficiently important objective to warrant over riding a protected right?
- Is the means chosen proportional
a. Is there a rational connection between the limit and the goal
b. Is the right impaired as little as reasonably possible
c. Overall is the limitation proportional to the objective being pursued/ tippingj sledgehammer
Step 4
If justified adopt the natural meaning
Step 5
If unjustified court must see if there is a rights consistent alternative in accordance with bora under s6
Step 6
If so adopt it, if not adopt the natural meaning (s4)
Remedy’s under Hansen
-if can’t find consonant then apply s4
If not
-nz is limited in remedys, the main remedy is DOI
-article 8 of ICCPR fundamental right to have remedy
-bora doesn’t have remedys, the only one a tribunal can give is DOI (s92j)
Atkinson 2 step test for discrimination
Step 1
- Is there differential treatment between people or groups in comparable situations (comparable group) on the basis of a prohibited ground
Comparative group= same circumstances without the discretionary feature
Atkinson test step 2
Does that differential treatment result in material disadvantage
In Atkinson -yes not paid for their work
What is the method for approaching discrimination cases against government
1.is the government body covered by part 1a
2.is there discrimination (Atkinson 2step)
3.is it positive discrimination
4. Is the discrimination justified (s5 BORA)
5. What remedies are available if discrimination is not justified
What is a remedy for breach of BORA in judicial review
Court can set aside an administrative decision if it doesn’t properly consider BORA
What is a remedy for breach of BORA in criminal proceedings
Exclusion of evidence if obtained in breach of BORA
What is indirect discrimination
When the EFFECT of something is discriminatory
What is a comparator group
McAllister v air nz ltd
“A comparator group is a group in the exact same circumstances but without the characteristics/trait
What is direct discrimination
When the purpose and function is discriminatory
What is positive discrimination
Discrimination for the purpose of advancing someone eg women or poc
Allowed in section 73 HRA
What happened in ministry of health v Atkinson
MOH had a policy that of excluding family member for service
- policy that meant family members couldn’t be paid
- set out the Atkinson 2 step test regarding discrimination
What are prohibited grounds of discrimination
-sex,marital status, religious belief, age, race,family status etc
What is direct discrimination
The purpose is discriminatory
What is indirect discrimination
The effect is discriminatory
What is positive discrimination
Policies that allow people who are discriminated to level the plane set
-someone who is already discriminated against to lift them up and it is allied
S73 measures to ensure equality
-assuring advancing
In what situations is discrimination prohibited
HRA part 2 -sets out when discrimination is prohibited in private sector eg
Eg emplyment
Access of education
Access to public places, vehicles,facilities
How is BORA and HRA connected
Via s19 of the bora freedom from discrimination
HRA makes discrimination unlawful and sets up complaint mechanisms
BORA gives right to be free from discrimination
What is the human rights amendment act part 1a
Allows complains to be made under HRA about alleged discrimination in respect of all gov activities
BORA 20L
Breach clause
Makes it clear that the standard to assess give activities
Bora aimed at giv and HRA aimed initially at private sector
What is the method for approaching discrimination cases against
- Is the government body covered by part 1a
- Is there discrimination (discrimination, comparator group, prohibited grounds, indirect/direct)
- Is it positive discrimination (ss19(2) BORA, 73 HRA)
- Is the discrimination justifiable (s5BORA)
5.What remedies are available if discrimination not justified? (Next time)
HRA + BORA in relation to Atkinson
1yes MOH is
2. Yes discrimination
3.no not for the purpose of advancing grouped
4. Could said no not proportional-limit greater than necessary to meet objectives
5.human rights commission and human rights review tribunal
What is the human rights commission
2 key roles
Dispute resolution process
Human rights programs
Emphasis on the alternative resolution of disputes with the support of the commission
Is dispute resolution fails can take claim to HRRT
What is the human rights review tribunal
Functions in part 4 of the HRA
-before this you must make a complaint to the human rights commission
-claims can relate to discrimatuon , sexual harrasment, racial harassment
-like a court- adjudication also has inquitorual powers
Mainstreaming human rights in the public sector
A big part of the human rights commission is focusing on human rights in the public sector
After the HRA was applied to the public sector in 2001
Responding to the fact that the public sector was a major culprit in the terms of discrimination
