Human Rights

Why are rights important?

Changes the way that we view the citizen state realtionship, gives the citizen and entitlment rather then the state being the boss

What are rights?

Rights are politcal claims that the legal system responds to

A parliementary Bill of rIGHTS

• Bill can be ammended or repealed by parliemtn at any time

• It recongises that parliment is soverign

• Pretty much parliemnt has to choose to inculde them they are not entrenched

A bill of reasonable rights

• Provides that rights can be breached if there is a reasonable jsutifcation

• Section 5 allows the goverment to breach rights as long as the limitations are free and consitent with a democratic society. 

• Pretty much that rights are not supreme there are limits to them

Judical recognition

Interpet them in a way consitent with rights, proportionality to how many (prisoner voting), craftin remdies for the breaches

Principle of legality

Courts will interpret the law in a way that is consitent with rights

Section 4

Legislation can override rights

Parliment can make any law they want and no one can over ride them

Parliment is the primary protector of these issues but they can be ignored

Section 5

Rights have limitations

• Limit is presecribed by law, must be reaosnably justifed 

• Because we have limits rights are not absoloute

Section 6

Consitency and interpretation

• If legislation is ambigous courts will interpret in a way that does not breach rights

Hansen test

• Intended meaning

• Apparnet incosntency

• Justified lime (Section 5)

• If not jstified consitent interpretation (section 6)

• Possible breach (section 4)

No remides

None included in the statue, there are 2 potential reasons

1. Oversight in the common law

2. NZ BORA was trying to break traditons and get a new way of thinking with a focu on citzen adn state relationships- Take this view

Bagient Case

• Police received a tip off about a house selling drugs- got the wrong house knew it and then continued to search it anyway

• Court said that rights were important and a remdy should be given

AG v Taylor

• Taylor was a prisoner who wanted to vote but was not able to

• Established the precedent that court can issue a decleration of incosntiency if the legislation is in breach of BORA in which parliment then has to respond to 

Section 14

Everyone has a right to the freedom of expression

Market place of ideas

• Contest for truth

• Allows people to get there thoughts out there

• These ideas can then be collectivley accepted or rejected

Constitutional democracy

has 3 limbs, Market palce of ideas, indivdual self fulfillment and preventing injustice

Individual self fulfillemnt 

Everyone shuld be able to live there best lives and you can do things that make up your identity and fulfill you as this enriches wider society

Preventing injustice

Freedom of expression is a saftey valve, Everyon has the right to get someoen to investigate and stop conviction

Limits on freedom of expression

Legal

• Defamation, Hate speech, censorship and copy right

Social limit

• Crude language, boycotting providers for ethical reasons

Pointon v Police

• Running through the secluded woods naked at an early time in the morning

• Was seen

• Court found that he was epxressing himself and deserves protection as even without an audience he is public enough for it to be expressive conduct

AG v Smith

• Notorious prisoner, wanter to wear a wig

• Court said Pointon was drawing attention to his lifestyle wearing a wig is not expressing anything, section 14 is designed to protect people expressing counter cultural decisions