LAWS101A Human Rights General Info

How can we define rights

Political claims that places the interests of human rights above others with that label, that the legal system responds to

What are the characteristics of rights?

They are not absolute trump cards, as nothing is in politics and law. They are up to debate & discourse

What do rights represent?

Represent liberty by limiting the states ability to interfere with our lives and encourage equality and fraternity by common dignity and shared humanity

What does NZBORA stand for

New Zealand Bill of Rights Act 1990

Outline NZBORA

Legislation that sets out fundamental first-order rights but only reaffirms them instead of defining them because rights exist outside of legislation

Describe NZBORA un-entrenchment

Originally proposed to be entrenched, but did not become entrenched because of Parliamentary sovereignty. Now it expressly mentions Parliamentary sovereignty

How is Parliament restricted when legislating around NZBORA?

Assumption that Parliament will consider rights and only breach when absolutely necessary, process checks- parliamentary process + Attorney General writing reports

How to Courts consider NZBORA?

Consistency by s4, 5, 6, & remedies

What is proportionality for NZBORA?

Parliament action is subject to law, so when Parliament breaches rights it has to be proportional with the governments aims. Usually there is a means aligned with NZBORA that should be taken, if not the Courts will find it a breach

What is remedies for NZBORA?

Government action means compensation but legislative breaches do not mean financial compensation to not interfere with Parliamentary sovereignty. The remedy is instead a declaration of inconsistency

What is a Declaration of Inconsistency?

A declaration that the legislation is inconsistent with NZBORA. Parliament will either respond by keeping the legislation of amending it. Purpose? a strict, public, and official push for Parliament to do better, to make it work

Outline section 4, 5, & 6 of NZBORA

Other enactments not affected, justified limitations, interpretation consistent with the Bill of Rights to be preferred

Describe section 4 with the relationship trade off

Preservation of Parliamentary sovereignty, showing that any legislation can override rights and NZBORA holds no power to repeal, revoke, or decline application of any other legislation.

Relationship trade off- Parliament can do whatever and the Courts will publically hold them accountable and add pressure. Publicity means Parliament need to be clear in their breaches to the public and justify them

Describe section 5

Two premises for a breach to be valid: Breach is prescribed by law, and the breach is reasonably justifiable. Big question is if public policy is worth interfering with our rights i.e covid restrictions

Describe section 6

If court interprets legislation in one way more consistent with NZBORA, that interpretation should be taken, a backseat of literal meaning interpretations. Courts are able to override Parliaments sneaky attempts at breaching NZBORA using broad language to bypass the democratic process but s6 makes every word subject to NZBORA

How do the Judiciary effectively apply sections 4, 5, & 6 in the Courts

The Hansen Test

What are the 6 steps to the Hansen Test?

1. Ascertain Parliament's intended meaning.

2. Ascertain whether that meaning is apparently inconsistent with a relevant right or freedom.

3. If apparent inconsistency is found at step 2, ascertain whether that inconsistency is nevertheless a justified limit in terms of s 5.

4. If the inconsistency is a justified limit, the apparent inconsistency at step 2 is legitimised and Parliament's intended meaning prevails.

5. If Parliament's intended meaning represents an unjustified limit under s 5, the Court must examine the words in question again under s 6, to see if it is reasonably possible for a meaning consistent or less inconsistent with the relevant right or freedom to be found in them. If so, that meaning must be adopted.

6. If it is not reasonably possible to find a consistent or less inconsistent meaning, s 4 mandates that Parliament's intended meaning be adopted.

What makes NZBORA unique?

Remedies and Legislature-Judiciary relationship

How is NZBORA unique in remedies?

There is no provision for remedies in NZBORA

What are rights and remedies originally?

Under Public law and the Westminister system remedies and rights develop together- ticking the boxes of a breach gives a remedy

How do kiwi courts develop remedies

Court have creative freedom to develop remedies as they see fit on a case by case basis. Complications arise when it can be seen as stepping over mandated power and infringing on Parliamentary sovereignty

How is NZBORA complicated for the Legislature and Judiciary?

It is legislation that is an exercise of Parliamentary legislative power and Judicial power. Parliament can do whatever it wants but Courts restrict this- both through NZBORA

What is an example of the struggle between the Legislature and Judiciary?

Make it sixteen campaign falling under NZBORA that was made Parliaments responsibility

How may rights be limited?

They may be limited through the law, & socially