Rights

Question 1

A human right is a?

Answer 1

Political claim which the legal system responds to
It is a claim that certain intrests a person has should be privellaged in the ongoing political calculus involved in the practice of government

Question 2

Rights are …. but not …

Answer 2

Rights are privellaged but not absolute interests

Question 3

Why are rights important?

Answer 3

1. Important for many values protected in society
2. Set boundaries to how government can legislate around us

Question 4

Human rights engage what 3 things?

Answer 4

1. Liberty: they limit the ways in which the state can justifiably interfere with our lives
2. Equality: all humans engage the same rights
3. Fraternity: the sense of common dignity and enjoying the protection of human rights by virtue of our shared humanity

Question 5

NZ BORA can be referred to as 2 things:

Answer 5

1. Parliamentary BORA - because it is an ordinary statute that can be appealed and reconises parlimentary soverignty
2. Bill of reasonable rights - because the rights can be breached if a justified reason

Question 6

S4 of NZ BORA =

Answer 6

Protects parlimentary supremacy expressly
Legislation formulated by parliment, in theory, can overide rights whenever.

Question 7

S5 of NZ BORA =

Answer 7

Rights have limits
They are not superior and are subject to restrictions
The 2 limits which must be met for breach:
1. Prescribed by law
2. Reasonably justified

Question 8

S6 of NZ BORA =

Answer 8

Presumption of Consistency
In the case of ambiguity, an interpretation of consistency with BORA should be prefered over one that is not.

Question 9

What is unique about the NZ BORA?

Answer 9

There is no remedy for breach.

Question 10

What are the 2 remedies possible for NZ BORA breach?

Answer 10

1. Damages
2. Declaration of Inconsistency

Question 11

What case links to damages?

Answer 11

Baigent v Police

Question 12

What case links to Declaration of Inconsistency?

Answer 12

Taylor v Attorney General

Question 13

What is a declaration of inconsistency?

Answer 13

Not a legally binding thing, but something which the court can issue to make a statement to Parliment that there is an inconsistency

Question 14

NZBORA S14 =

Answer 14

Freedom of Expression Section
Says that “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”

Question 15

What 4 reasons are there for us having a freedom of expression?

Answer 15

1. Marketplace of ideas
2. Political contest
3. Individual self fufillment
4. Preventing injustice

Question 16

What is the Marketplace of Ideas?

Answer 16

Competing versions of the truth allow the exchange of ideas.
Ideas cannot be discarded without assessment
The truth will win out
We want lots of ideas so we can assess them

Question 17

What are the 3 limits on freedom of expression?

Answer 17

1. Legal limits: eg copyright, defamation
2. Social limits: people separating from you
3. Government imposed limits: government has a lot of power

Question 18

The benefits of freedom of expression should….

Answer 18

Outweigh the consequences/ limits

Question 19

4 freedom of expression cases are?

Answer 19

1. A-G v Smith
2. Pointon v Police
3. Morse v Police
4. Lowe v Police

Question 20

Key points in A-G v Smith

Answer 20

Court of appeal distinguishes that expression happens when you are doing something to stand out
But Smith was trying to fit in

Question 21

Key points in Pointon v Police

Answer 21

To a reasonable person it would not have been offensive + no intention of it being offensive.

Question 22

Key points in Morse v Police

Answer 22

Reasonable person would not find it offensive and it does not disturb public safety or threaten violence

Question 23

Key points in Lowe v Police

Answer 23

Quiet road and can’t see parts
The complaintant was concerned about high speed not OFFENDED by his nudity - different from Pointon.

Question 24

For there to be a claim against expression rights…

Answer 24

They have to be offended not just concerned