Human Rights Flashcards

Step 1 of the Hansen Test

Identify the natural meaning of the legsilation

Step 2 of the Hansen Test

Is the natural meaning inconsistent with an NZBORA right?

Step 3 of the Hansen Test

Is the limit on the right ‘justifiable’ under s5?

Step 4 of the Hansen test

If It is justified, the natural meaning prevails

Step 5 of the Hansen test

Is there a meaning which does not unreasonably limit the right under s6?

Step 6 of the Hansen test

Adopt the rights consistent meaning

Authority for if a limitation is justifiable?

R v Oakes

Two step test for determining if a limit is justifiable

1. Does the limit pursue a sufficiently important objective to warrant overriding a protected right?

2. Is the means chosen to achieve the objective proportional?

   1. Is there rational connection between the limit and objective?

   2. Is there minimum impairment of the right?

   3. Overall, is the limit proportionate to the objective being pursued?

Authority for the test of discrimination?

Atkinson

Test for discrimination (s21)

1. Is there differential treatment or effects as to comparator groups on the basis of a prohibited ground?

2. Does this result in material disadvantage?

The authority for the comparator group in the Atkinson test

McAlister. The appropriate comparator group is people with exactly the same circumstances minus the characterising features which cause the discrimination

What are the remedies available?

Taylor Declaration:  A Declaration of Inconsistency (separate to the judgment) (Borrowdale established an increased willingness by the Courts to issue Taylor Declarations even when the plaintiff is unsuccessful)

If a judicial determination hurts your BORA rights, judicial review is open to you per s 27(2); criminal evidence collected in breach of BORA is typically ruled inadmissible as a remedy

Simpson v Attorney General (Baignet’s case) - Court invoked ICCPR and BORA to find remedies are allowed, so they should have jurisdiction to award damages - these are often overridden by higher courts, and must be the only effective remedy, and typically only against a breach by the Executive branch