Human Rights

What are rights?

Rights are political claims that the legal system responds to

What does a ‘parliamentary bill of rights’ mean

The bill of rights is an ordinary statute that may be appealed for amended by parliament at anytime. This makes the Bill of rights vulnerable. The bill itself recognises parliamentary sovereignty. Parliament may chose to recognise and follow the rights. They can override rights but they shouldn’t do this without a reasonable justification. Parliament becomes aware if they are breaching rights through the select committee process and the section 7 report by the Attorney General. Thus people must trust that parliament takes rights issues seriously.

What does a ‘Bill of reasonable rights’ mean

NZBORA is sometimes called a Bill of reasonable rights as the Act provides that the rights can be breached if there is if it is ‘demonstrably justified in a free and democratic society’. The Government can intervene and legislate over the top of rights for example passing anti-hate speech legislation. In other words the Bill of Rights is not a constitutional instrument and is not a binding document for parliament who can breach these rights if it is justifiable to do so. (in relation to section 5)

How do courts interpret the rights? and how can Parliament get around this?

Courts take rights relatively seriously, they use the principle of legality (where theres ambiguity the courts will prefer the interpretation of statute and common law that best gives rise to human rights’. In order to extinguish this Parliament must state that they want to breach the rights in NZBORA extremely clearly otherwise the courts will assume that Parliament has legislated in accordance to it. They also consider the proportionality of the breach (eg a blanket ban) and different ways to give effect to the policy with the least amount of breach.

Prior to WWII how were rights regarded and how has this changed?

The states had all the power it was always what can the citizens do for the state. Rights fundamentally change the way this interaction/relationship - it creates an entitlement of the citizen against the state. Human rights influence law because law is often a commentary on state and citizen relationship

Section 4 of NZBORA

preserves and protects parliamentary sovereignty expressly. Legislation cannot be revoked over rights. Parliament should stay sovereign despite the commitments to rights (people trust that parliament take rights seriously).

Parliamentary sovereignty

Parliament can make or unmake laws with no restriction and no other body can override parliaments legislation.

section 5 NZBORA

Allows for rights to be breached if:
1) Prescribed by law [legal]

2) reasonably justified [in a free and democratic society

Reasoning:
We deliberately do not hold rights as absolute - ‘bill of reasonable rights’, we understand that our rights do not come without limits. Section 5 emphasises this - my rights have been breached in an unjustified way
Note:

Blanket restriction on rights are almost always unlawful as they do not take into account individual circumstances.

section 6 of NZBORA

creates interpretative presumption that courts will favour human rights obliging interpretation (consistency in interpretation) - allows the courts to make legislation which seems clear ambiguous to make it in line with human rights because we assume that parliament wouldn’t breach them. Essentially puts into legislation the principle of legality.
Arguments against this is that it takes away from parliamentary sovereignty

Hansen test (5 steps + 1)

1) Intended meaning (face value, parliamentary intention) - no inconsistency all good
2) apparent inconsistency
3) is there a Justified limit (section 5) - all good if so
4) if not try and give a rights consistent interpretation (section 6)
5) If rights consistency is not possible the breach is allowed (section 4) - Parliamentary sovereignty prevails (would be unjustified tho)

Argument to bring section 6 before 5 because if it is justified they are not looking for a more rights consistent meaning.

No remedies? why is this?

Assumes that the recognition of rights are enough and that the political and legal system will follow it.
this is a bit strange as it doesn’t follow how the westminister system of common law has developed, the defining feature of common law is structured around the remedy for a defined role - literally came from the writ system where there was prescribed remedies for situations.
It was a deliberate choice to exclude remedies - arguments why
1) oversight of the common law developing
2) Trying to break traditions and put us in a new way of thinking with a focus on citizen and state relationship - substance of the rights are important not the remedies that go around them
3) the lack of remedies allow the courts to think about issues differently and find the right solutions for each scenario

Simpson v Attorney-General (baigent’s case)

Government breach → damages
Facts: Police received a tip-off that cannabis was being sold at a particular address. Vague ended up at wrong house - informed of this by lawyer daughter, nothing incriminating was found. Mrs baigent sued alleging breach of right to be free of unreasonable search and seizure.
Result: yes, NZBORA implies that effective remedies should be available for its breach - exclusion of evidence doesn’t apply hear because nothing was found thus damages are allowed.
2 ways to understand this case:
1) Narrow (parliamentary) - government breaches rights damages will follow
2) Broad - rights are breached the courts will fashion remedy that fits the circumstance

Attorney - General v Taylor

Parliament breach → declaration
Facts: Taylor wanted to vote - legislation passed that meant he couldn’t vote
Argued for a declaration from the court for an official document that said this ban is inconsistent with NZBORA.
HC - originally agreed with him - it is not ‘demonstrably justifiable in a democratic and free society’
SC - its an extension of the Baigent situation rather than a constitution
A declaration of inconsistency is appropriate as it is not interfering w/ the wider constitutional arrangements and parliamentary sovereignty.
No other reasonable remedy, you cannot make parliament overturn legislation and you can't get damages as no breach has technically been caused.

4 justifications to protecting freedom of expression

1) To enable the market place of ideas (everyone sharing ideas and the best idea prevailing, ensures alternate ideas are available) Limitation is that the loudest and most powerful voices tend to win regardless of the truth

2) To enable political contest (important for democracy as it allows the government to determine what the will of the people is

3) To enable individual fulfilment (allows us to live a full and dignified life the way we want it)

4) To prevent injustice (people feel they can speak up)

Limits of freedom of expression

Legal limits eg copyright law, defamation and prohibition on hate speech
Social limits - people may be criticised socially for saying offensive things (encourages people to to tailor their behaviour)
Government imposed limits - they can limit freedom of expression, may face a trade-off b/t protecting freedom of expression and some other public good. (government must be careful not to overreach- section 5 prevents this saying that the limits must be justified

Morse v Police (supreme court 2011)

Facts:
Burnt NZ flag as part of an anti-war protest at the ANZAC Day Dawn Parade. Charged with offensive behaviour.
Outcome:
A reasonable person would accept the right to protest by engaging in flag burning and would be tolerant to that sort of behaviour - morse not liable

Pointon v Police (HC 2012)

Pointon was running through woods naked, seen by woman and her dog. Woman complained and Pointon was arrested and charged with offensive behaviour. Pointon is a geniune naturist, made lifestyle choices to be naked, claimed to be making a political statement. 
Pointon said its like morse: 
   - behaviour was a form of expression

• public order was not disturbed

• it was not sufficient that the complainant was annoyed or put out

Prosecution: distinguish from morse
- unlike morse, there was interference with the enjoyment of a public space

• there was no political audience for protest

Expression includes not only the inoffensive but also the irritating, the contentious, the eccentric the heretical, the unwelcome and the provocative so long as they are not encouraging violence (freedom to speak inoffensively is not worth having) - if the activity conveys or attempts to convey a meaning, it is expressive content.

Defendant was unlikely to be seen by a large number of people as he chose a time where there would be minimal people
OUTCOME: engaged in expression and this was not offensive behaviour - freedom of expression was not outweighed by concerns of public order and decency.  

things to think about for pointon v police

does the fact he wasn’t trying to offend anyone downplay the political statement he was apparently making?

what is the significance that Pointon was apart of a nudist community?

if he was not intending anyone to see his expression was it really expression?
if he was walking around his house naked would that be considered expression?
why is parking a car not expression?
self fufilment yes but did it contribute to market place of idea or political expression as he didnt have an audience?

Attorney-general v Smith

Facts:

• Smith a prisioner sought permission to wear a wig to cover his bald head - denied and claimed FoE had been breached.
  Smith argued:
  - freedom of expression wasn’t even taken into account

• wearing a wig is a harmless form of expression

• did not claim to be making a political statement

issue: does smith’s wearing of a wig amount to expression

Reasoning: distinguished from PvP by framing it in terms of political expression that P was engaged in - he was trying to stand out and draw attention to something outside of the mainstream
Expression: its as wide as human though and imagination (incl non-verbal + symbolic conduct)
BUT does not incl mindless utterances or sounds must convey meaning

hairstyles may be expression if they communicate

Acts whose rewards are confined to the actor’s own ego may well enhance self-fulfilment but they are not expression, or the expression protected by s 14. 
Smith wearing his wig is not provoking ideas nor informing people

Outcome: smith’s wig wearing is not enough to engage in s 14

not enough people may view Smith differently

Key points of AG v Smith

• Not all human conduct is prima facie expression (despite arguable benefits for human fulfilment, the expression must have a purpose and attempt to convey meaning.

• Without more hairstyles don’t communicate anything thus do not engage freedom of expression

To think about for AG v Smith

is it valid how they distinguished Pointon valid?
can ‘trying to stand out’ be distinguished from ‘trying to fit in?

is the desire to fit in ‘expression’ should it be protected by law?