Rights Flashcards
A human right is a?
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
Rights are …. but not …
Rights are privellaged but not absolute interests
Why are rights important?
- Important for many values protected in society
- Set boundaries to how government can legislate around us
Human rights engage what 3 things?
- Liberty: they limit the ways in which the state can justifiably interfere with our lives
- Equality: all humans engage the same rights
- Fraternity: the sense of common dignity and enjoying the protection of human rights by virtue of our shared humanity
NZ BORA can be referred to as 2 things:
- Parliamentary BORA - because it is an ordinary statute enacted by Parliment, not being entrenched
- Can be appealed and amended by parliment like an ordinary statute
Reconises parlimentary soverignty/ supremacy in this sense - S4
It is up to parliment to be rights consistent because, in theory, they are empowered not to be. - Bill of reasonable rights - because, while individuals have rights, these rights are subject to limitations to protect public order, safety and the rights of others - reflected in S5 of the NZBORA
The rights can be breached if reasonably justified in a free and democratic society
S4 of NZ BORA =
Protects parlimentary supremacy expressly
Legislation formulated by parliment, in theory, can overide rights whenever.
S5 of NZ BORA =
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 - (set out in a statute somewhere)
2. Reasonably justified in a democraic soceity
S6 of NZ BORA =
Presumption of Consistency
In the case of ambiguity, an interpretation of consistency with BORA should be prefered over one that is not.
What is unique about the NZ BORA?
There is no remedy for breach.
What are the 2 remedies possible for NZ BORA breach?
- Damages
- Declaration of Inconsistency
What case links to damages?
Baigent v Police
Went to wrong house for a drug bust, even after becoming aware they went for a look around anyway (forcibly entered the home)
Judge thought it would be odd to enact a statute like NZBORA unless there were meaningful consequences when breach occurs. therefor, the judge held that Parliment wants the courts to fashion a remedy
- When there is a breach, you can claim damages or the courts will fashion an appropriate remedy
What case links to Declaration of Inconsistency?
Taylor v Attorney General
It is different when the breach of rights is by the legislation and not by somebody else.
They have no legal effect - not binding BUT they have a constitutional effect as it draws attention to the inconsistency and created a public and political impulse to address it.
National Govt enacted legislation which banned all prisoners from voting desipite AG flagging that is was a breach. Taylor appealed this
First time a declaration of inconsistency was used.
What is a declaration of inconsistency?
Not a legally binding thing, but something which the court can issue to make a statement to Parliment that there is an inconsistency
NZBORA S14 =
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”
What 4 reasons are there for us having a freedom of expression?
- Marketplace of ideas
- Political contest - needed for healthy political discussion and democracy as it allows open debate and discussion that allows the govt to determine what the will of the people is and how they can implement that will.
- Individual self fufillment - we want to be us.
- Preventing injustice - people need to feel they can speak up and investigate wrong doing or else we will not be able to fix injustice.
What is the Marketplace of Ideas?
Old justification for freedom of expression
There are rival/ competing versions of the truth but no one is individually best placed to understand what the truth is so therefor we need to have a marketplace of ideas to best find the truth.
The truth will win out
We want lots of ideas so we can assess them
What are the 3 limits on freedom of expression?
- Legal limits: eg copyright, defamation
- Social limits: people separating from you
- Government imposed limits: government has a lot of power, eg; they can impose regulations in crisis to reduce any social gatherings (COVID)
The benefits of freedom of expression should….
Outweigh the consequences/ limits
4 freedom of expression cases are?
- A-G v Smith
- Pointon v Police
- Morse v Police
- Lowe v Police
Key ratio in A-G v Smith
Because no meaning was being conveyed by Smith’s wearing of a wig, this was not enough to amount to expression and therefor engage S14
Court of appeal distinguishes that expression happens when you are doing something to stand out
But Smith was trying to fit in - disginguished Pointon who was trying to stand out.
Key ratio in Lowe v Police + when it would be different
Nude bike riding was not offensive - Quiet road and can’t see parts - cars going past at high speeds would not be able to see much
The complainant was concerned about high speed not OFFENDED by his nudity - different from Pointon.
He is committed to being nude but not offending by it - no intention.
Would be different if mowing lawn in the nude on a residential area where many could see him
- Higher public exposure (includes families and children) = high likelihood of being seen
In this setting where it is more public dense, there is a higher expectation of public order - higher potential to offend others.
- Rural vs residential
For there to be a claim against expression rights…
They have to be offended not just concerned
Material facts in Attorney General v Smith
Notorious prisoner who previously made headlines for wearing a disguise, going to boarder, getting on a plane and flying to south america - escaped the day visists which run on trust
He was found
He later applied to prison officials to wear a wig but it got denied in connection to previous actions
Smith challenged this decision soughts to wear a wig not for religious reasons but as a personal choice to cover his baldness, asserting it was a form of self expression.
Agree of disagree with the courts decision in Attorney General v Smith
Why didn’t the court make their decision in the lens of S6 rather than S5
There is a rights consistent approach and this could have been taken over the inconsistent one they chose.
Eg; a school giving boys the same hair cut does not say nothing, it is actually an expression of them trying to say they are tidy etc.
Eg; buying all the trendy clothing expresses that you are cool BY FITTING IN.
Fitting in IS saying something a lot of the time
Material facts in Lowe v Police
Mr Lowe went biking naked, being passionate about naturalist sports events.
Was on a quiet road at quiet time of day
Mother and her baby drove past
She was concerned about speed/ safety
A reason to agree and disagree with the courts decision in Morse v Police
Agree:
Overseas precedent of the United States (Texas v Johnson) reconises flag burning as a legitimate form of protest
Importantance of dissent in democracy
Disagree:
Context of when the protest took place - on Anzac day
Anzac day is a solemn event which has a reasonable expectation of respecting those who died for us in history - unessecary harm and offense to the families.
While her right to freedom of expression is important, does it outweigh the need to respect public order and sensitivity during solemn public events - subject to limits S5
Reason to disagree with the courts decision in Lowe v Police
S5 - Subject to limits
While he has the right to personal freedom of expression, his right is not absolute. The presence of naked individuals in any context can create discomfort and disrupt social norms - justifying legal limits under S5.
Difference between Legal Positivism and Natural Law
Legal positivism = the substance of a legal rule (whether it is good or bad) has no bearing on whether we should treat it as valid. It takes its authority from its source
Law is understood in terms of its source
Laws can be present even if unjust
Natural law = moved away from morality and focuses on rationality as the moral component for law to be valid.
law is derived from moral principles. Laws should not exist if they are unjust and do not have a rationality.
Legal pluralisim
When different laws or legal systems exist alongisde eachother in the same place. This means that people may follow different rules based on things like culture, in addition to the laws set by the legislature
How do the focused sections of NZBORA interact with each other?
They interact to create a balance between protecting individual rights but also allowing for reasonable limitations. The interplay between them ensures that rights are upheld while allowing for necessary restrictions in certain circumstances
Does NZ have legal pluralisim?
Yes, because we know that tikanga sits alongside the colonial state legal system
Case for tikanga being considered/ legal pluralisim
Takamore v Clarke
He died and left no instructions of burrial and 2 arguments from wife and family where he should be burried.
This case was an opening door to the renewed recognition of tikanga in nz - they considered his Tuhoe custom as a mandatory relevant consideration
What is a consequence on S5
Blanket restrictions are almost always unlawful, unless the legislation specifically says the rules will apply in all circumstances
How do S4,5,6 work together?
They seem to contradict each other
The Hansen Test
- Try and find the Intended meaning using normal rules of stat interp
- If that meaning infringes on rights, the court will consider whether the infringement is justified as per S5
- If justified then done.
- If not justified, then court will use S6 to see whether they can adopt a rights consistent interpretation. If a better meaning is availible they will use it and done
- If not availible, then S4 will be used to say the courts are still required to apply because of parlimentary supremacy.
Order of sections in the hansen test
5,6,4
Issue with the Hansen test
Gives s5 prominence over S6
This is problematic because S6 is the primary mechanisim for protecting rights because it requires the courts to give a consistent approach where possible.
The prominence the Hansen test gives to s5 is what makes people call NZBORA a bill of reasonable rights
- Because it does not attempt to protect rights in the most complete way possible
KEY PROBLEM IS THAT THE COURT MIGHT NOT EVEN GET TO S6 AT ALL.
2 Alternative perspectives for the Hansen test
Bring in S6 sooner?
Begin with it? See if there is a consistent meaning possible and then, if not, see if breach is justified.
- Would provide consistency instead of just justifying the breach.
NZBORA is designed to foster a culture of rights consistency through the 3 branches of govt. Putting S6 at a step which may not even take place is problematic
If we favor the approach that goes straight to S5 first, we are robbing ourselves from the opporunuty that, even if the limit is justified, there could have been a different meaning availible which fosters our rights consistency more.
S14 is drafted in a very …. way
Broad - terms of “everyone, any way, any form”.
Arguments in Pointon v Police
Pointon:
- Freedom of expression
- Public order was not disturbed
- Not sufficient that the complainant was annoyed
Prosecution:
- Tried to distinguish Morse by saying that there was an interfereance with enjoyment of a public space and there was no political audience
How do Judges interact with rights in the courts?
- Strive to give a rights consistent interpretation to an ambiguious phrase or word.
- Insist any government action that breaches rights is proportional to the aims of that Government action.
- They have take responsibility for crafting appropriate remedies where they have been breached.
Why is the order of the sections important in the Hansen test + overall interpretations?
It is controversial and contested because it can greatly impact the outcome in a case
How does the declaration of inconsistency link back to rights being political claims?
You will have a stronger political claim for repealing a piece of legislation if the courts have said that that legislation is inconsistent with the rights our society has chosen to protect.
An act of Parliment is…
The highest authorotative law in our system
Facts of Morse v Police
Morse burnt NZ flag as part of an anti-war protest (to show disagreement with NZ involvement in overseas conflicts) at an ANZAC day memorial parade.
Charged with offensive behaviour
The ratio/decision of Morse v Police
Applied the reasonable person standard - reasonable person would recognise their right to protest under FOE and would have tolerance to this behaviour.
Not considered as behaving in an offensive manner - just FOE
Facts of Pointon v Police
Pointon was a naturalist who was running naked in the woods, did not think anyone would see him but he ran past a woman walking her dog. She was offended and reported him.
The ratio/ decision in Pointon v Police?
Said that, yes it was expression, as he was expressing his unusual lifestyle choice - just because someone (lady) doesn’t like his expression, does not mean it is not expression.
Also said that is was not offensive. Applied Lowe v Police where the biking was not offensive - said it was the exact same as they were both unlikely to be seen by a large number of people and were both committed to being nude but not showing it off.
Overall outcome of Pointon v Police
He was engaged in expression and on balance this was not offensive behaviour
Arguments for Pointon v Police
If he was not intending for anyone to see his expression, is it really expression?
ETC
All depends on how expression is defined. Pointons nudity was definitely self fufillment but it is arguable as to whether or not he contributed to the marketplace of ideas or political expression due to a lack of audience.
Is it valid to have judicially created remedies for breach of rights?
Yes:
It would be pointless to have no remedy for breach - as held in Baigent v Police
Can act as a restriction of P supremacy - dec of inconssitency
Rule of law - access to justice
No:
Overstep their role - can lead to tensions between legislature and judiciary if they are seen as stepping into parliments job
Uncertainty in the law - hard for public to know what they should expect
