Human Rights

Laws206

what are human rights

Justifiable claims for the protection of essential human interests - they must be justifiable

What case developed the proportionality test used in NZ?

R v Oakes (Canada), later adopted in Hansen v R (NZ).

What are the two main stages in Oakes?

• Is the law’s purpose sufficiently important to justify overriding a right?

• Apply proportionality test.

What are the three parts of the Oakes proportionality test?

a. Rational connection between limit and objective
b. Minimal impairment – least rights-intrusive measure reasonably possible
c. Overall proportionality – limit must not be excessive (“don’t use a sledgehammer to crack a nut” – Tipping J)

In Hansen v R, which step did the appeal fail at? - What was Elias CJ’s dissent in Hansen?

Step 5 — the rights-consistent interpretation was not reasonably possible.

That s 5 justifiability is a discretion for the Attorney-General under s 7, not for the Courts.

What are the six steps in the Hansen proportionality approach?

• Ascertain Parliament’s intended meaning

• Does that meaning limit a NZBORA right?

• If so, is the limit justified under s 5 (Oakes test)?

• If justified → apply Parliament’s meaning

• If not justified → consider if rights-consistent interpretation possible under s 6

• If not → apply s 4 (Parliament’s meaning stands)

What does s 3 NZBORA cover?

that NZBORA applies to the State (s 3(a)) and persons exercising public functions (s 3(b)).

What does s 4 NZBORA state?

Courts cannot strike down legislation for being inconsistent with NZBORA.

What does s 5 NZBORA allow?

Rights can be subject only to “reasonable limits demonstrably justified in a free and democratic society.”

What is the purpose of s 6 NZBORA?

Courts must interpret legislation consistently with NZBORA rights where possible.

What is s 7 NZBORA about?

Attorney-General reports to Parliament if proposed legislation appears inconsistent with NZBORA.

Which section NZBORA protects from discrimination?

s 19 NZBORA – Freedom from discrimination.

What does s 21 HRA list?

Prohibited grounds of discrimination (e.g., sex, age, race, disability, religion, sexual orientation).

What is indirect discrimination under s 19 HRA?

Neutral actions or policies that disproportionately disadvantage protected groups.

What does s 73 HRA allow?

Positive discrimination (affirmative action) is lawful if it ceases once no longer needed.

What does Part 1A HRA do?

Extends the HRA to public bodies under s 3 NZBORA (executive, legislative, judicial).

What are the four steps in Atkinson (discrimination cases)?

1. Differential treatment

2. Comparator group

3. Prohibited ground

4. Material disadvantage

What is the “comparator group” rule from McAlister v Air New Zealand?

Compare with people in the same circumstances except for the protected characteristic (e.g. in his case comparator group wasn’t pilots who weren’t allowed to fly, it was all pilots regardless of age).

What counts as “material disadvantage” under Atkinson test?

Real, substantive harm – not trivial or theoretical differences.

What is direct discrimination?

Explicit, intentional less favourable treatment based on a prohibited ground.

What is indirect discrimination?

Neutral policy that disproportionately impacts a protected group.

What is positive discrimination?

Preferential treatment to help disadvantaged groups achieve substantive equality.

When answering exam question what must you go through for Hansen’s Step 1 -

Identify the natural meaning of the provision (ignoring s 6 NZBORA).

When answering exam question what must you go through for Hansen’s Step 2 -

Determine if the meaning limits a prima facie right.

When answering exam question what must you go through for Hansen’s Step 3 -

Use the Oakes test to assess if limitation on rights is justified

1. Is the law’s purpose sufficiently important to justify overriding a right

2. Proportionality test (three sub-parts):
a. Is there a rational connection between limit and objective

 b. Minimal impairment – measure must impair the right as little as reasonably possible.
c. Limit proportional to the objective being pursued– Tipping J - don’t need a sledgehammer to crack a nut

When answering exam question what must you go through for Hansen’s Step 4 -

If justified? - Apply Parliament’s meaning per s 4. -

lawsoc example - At this point, we are to adopt the natural meaning from step (1) if it is justifiable in line with s 7 BORA. As already discussed, it is unlikely that s 33B will be found justifiable, so this step is unlikely to be fulfilled, moving us on to step (5).

When answering exam question what must you go through for Hansen’s Step 5 -

If unjustified? Seek a rights-consistent meaning under s 6.

Find something reasonably attainable/ read down - read the statute in light of what would be a reasonable interpretation where the wording allows narrower, rights-consistent reading 

Or “read in” exceptions or limits - Fitzgerald v R - courts can “read in” exceptions or limits, add implying wording or qualifications to a statute to make it consistent with NZBORA rights, even if this slightly stretches the plain meaning. 

Important to note this reading must be done in line with purposive approach of Legislation Act 2019 (Interpretation Act 1999)

Elias CJ favoured an aggressive application of s 6, even when “linguistically strained”

What case supports “reading in” words to achieve consistency?

Fitzgerald v R – Courts may read in exceptions or limits if consistent with purposive interpretation.

What is Elias CJ’s view on s 6 BORA interpretation?

Courts should use s 6 even when meanings are “linguistically strained.” favoured an aggressive application of s 6

What approach guides NZ statutory interpretation?

Purposive approach under the Legislation Act 2019 (formerly Interpretation Act 1999).

What are the courts’ two main interpretive options when finding an NZBORA consistent approach?

• Read down – choose a narrower rights-consistent meaning

• Read in – add implied limits or exceptions to ensure consistency

What are the main remedies for NZBORA breaches?

Judicial review, civil damages (Baigent), exclusion of evidence, and declarations of inconsistency.

What are Baigent damages? - What case governs this concept?

Monetary compensation for breaches of NZBORA by the executive - rare (Simpson v Attorney-General).

What is a Declaration of Inconsistency? - What case governs this concept?

Judicial statement that legislation is inconsistent with NZBORA – doesn’t invalidate the law (Attorney-General v Taylor).

What did Borrowdale establish?

Established an increased willingness by the Courts to issue Taylor Declarations (DOI’S) - Courts may issue declarations even when the plaintiff’s substantive claim fails.

When can evidence be excluded for rights breaches?

When criminal evidence is obtained in violation of NZBORA rights (e.g., s 21–25).