Rights

Question 1

Hansen approach step 1

Answer 1

Identify parliaments intended meaning (natural meaning)

Question 2

Step 2

Answer 2

Is the meaning inconsistent with a relevant right or freedom

(If discrimination add Atkinson)

Question 3

Step 3

Answer 3

if apparent inconsistency is found at step 2,

Can the inconsistency be reasonably justified under s5

Question 4

Step 3, Oakes approach

Answer 4

1. Does the limit purse a sufficiently important objective to warrant over riding a protected right?
2. 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

Question 5

Step 4

Answer 5

If justified adopt the natural meaning

Question 6

Step 5

Answer 6

If unjustified court must see if there is a rights consistent alternative in accordance with bora under s6

Question 7

Step 6

Answer 7

If so adopt it, if not adopt the natural meaning (s4)

Question 8

Remedy’s under Hansen

Answer 8

-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)

Question 9

Atkinson 2 step test for discrimination
Step 1

Answer 9

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

Question 10

Atkinson test step 2

Answer 10

Does that differential treatment result in material disadvantage

In Atkinson -yes not paid for their work

Question 11

What is the method for approaching discrimination cases against government

Answer 11

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

Question 12

What is a remedy for breach of BORA in judicial review

Answer 12

Court can set aside an administrative decision if it doesn’t properly consider BORA

Question 13

What is a remedy for breach of BORA in criminal proceedings

Answer 13

Exclusion of evidence if obtained in breach of BORA

Question 14

What is indirect discrimination

Answer 14

When the EFFECT of something is discriminatory

Question 15

What is a comparator group

Answer 15

McAllister v air nz ltd
“A comparator group is a group in the exact same circumstances but without the characteristics/trait

Question 16

What is direct discrimination

Answer 16

When the purpose and function is discriminatory

Question 17

What is positive discrimination

Answer 17

Discrimination for the purpose of advancing someone eg women or poc

Allowed in section 73 HRA

Question 18

What happened in ministry of health v Atkinson

Answer 18

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

Question 19

What are prohibited grounds of discrimination

Answer 19

-sex,marital status, religious belief, age, race,family status etc

Question 20

What is direct discrimination

Answer 20

The purpose is discriminatory

Question 21

What is indirect discrimination

Answer 21

The effect is discriminatory

Question 22

What is positive discrimination

Answer 22

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

Question 23

In what situations is discrimination prohibited

Answer 23

HRA part 2 -sets out when discrimination is prohibited in private sector eg

Eg emplyment
Access of education
Access to public places, vehicles,facilities

Question 24

How is BORA and HRA connected

Answer 24

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

Question 25

What is the human rights amendment act part 1a

Answer 25

Allows complains to be made under HRA about alleged discrimination in respect of all gov activities

Question 26

BORA 20L

Answer 26

Breach clause
Makes it clear that the standard to assess give activities
Bora aimed at giv and HRA aimed initially at private sector

Question 27

What is the method for approaching discrimination cases against

Answer 27

1. Is the government body covered by part 1a
2. Is there discrimination (discrimination, comparator group, prohibited grounds, indirect/direct)
3. Is it positive discrimination (ss19(2) BORA, 73 HRA)
4. Is the discrimination justifiable (s5BORA)
   5.What remedies are available if discrimination not justified? (Next time)

Question 28

HRA + BORA in relation to Atkinson

Answer 28

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

Question 29

What is the human rights commission

Answer 29

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

Question 30

What is the human rights review tribunal

Answer 30

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

Question 31

Mainstreaming human rights in the public sector

Answer 31

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