Laws213 week 20 - BORA and Interpretation PDF

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BORA and Interpretation...

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Section  Domestic focus rather than international  Material book = bare minimum o 2003 Rishworth, Huscroft The New Zealand Bill of Rights (issue based) o Butler & Butler, The New Zealand BORA 1990: A commentary (sections explained deep) o Ministry of Justice, The Handbook of the NZ BORA Act 1990 Course aim  Why do we have HR?  Understand operative provisions i.e. Sections 4, 5 and 6  Some ideas about the scope and limitations of rights  Formulate contextual arguments o No right or wrong answer, just getting the best one.  Think for yourself

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There are bigger things behind someone wanting to die Consent is not a defence

Right to life  State is interested in safeguarding everyone's rights, so it can't be seen condoning someone in giving up their right to life. o If we allow this, can we then necessarily and seriously say we are protecting rights. o Can we, when we are given rights, can we decide we don't want them anymore?

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All rights have the same value.

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Balance values, and balance rights off others o Right not to live against interest of the state to provide safe human rights o Freedom of speech is a temporary breach, doesn't have the impact o What is the states involvement, what does it mean if the state decides that you are no longer a person (i.e. Can turn off life support when brain dead) o Sometimes two rights conflict, the state creates a balance i.e. Noise control.

______________________________________  There is philosophical justification for HR o Because they are a good thing to have. - Deontological o Advances society as a whole, or for an individual or group. - Teleological o Need HR to further own individual aspirations and fullest expression of our own moral autonomy. - liberal rights theory o Social rights approach: we only have them because they're useful. We give ourselves rights to be able to live with each other.

o Natural rights theory: we need order, or we are at each others throats. o Positivists: because we have them written down. o Religious: God given. Find a theory which works for you!!! - I like social rights approach Asia and Pacific has no regional human rights agreement or court  The idea expressed that the international human rights instruments are western constructs and don't conform with our values.  Is heavily used by governments as to why they do not adhere to these human rights. o Arguments against this: historically they were definitely voiced o If you believe we have human rights because we are human, then it doesn't matter. Humans are in their core values that we all want food, eat, sleep , work, live etc. How do we know HR exist?  We can use them in the courts  Binding in international law  BORA 1990, statutes - communal recognition Can there be rights that transcend national borders?  Core of human rights are the same in every society  Give nations the ability to make a decision around rights, but not core rights o The flexibility is around the limits of the rights, this will change culture to culture o There is no way core rights can be justifiably breached  Accusation that positive law is a western construct How do we interpret the NZ  Purpose Approach  BORA as a scheme  Common law and statute  ICCPR  Comparative law  White paper Purposive Approach (s 51 Interpretation Act 1991)  Focuses the attention on the nature of the particular right infringed and the object which the particular provision is trying to serve o Read words in light of the overall purpose  Generous interpretation (Ministry of Transport v Noort [1992])

Generous Approach Ministry of Transport v Noort [1992]  Facts: There was a provision missing: indirectly made the right for a lawyer when getting breathalysed = deemed within the boundaries of the court.

Interpretative BORA: problem with this type of BORA is whether the courts can be more activist or does it just read BORA and apply it. o BORA 1990: the way it is interpretative you use s 4-6. o It says it must be interpreted in a generous way BORA as a Scheme  Gives it an interpretation that ensure the provision satisfactorily contributes to the scheme of the statute (CM 8)  There is no 'right to protest' = but think as a scheme: freedom of expression, assembly, movement  Section 5 BORA: justified limitations o Parliament can actually limit all our rights o We have a general limitation clause which generally allows state to limit rights o It is up to Parliament if they infringe that right, that that infringement was justified Existing Statutory and Common Law  It backs rights up  BORA is evolutionary not revolutionary: it draws rights together, doesn't create them.  Courts have regard to existing statutes and common law. ICCPR  BORA was our affirmation of the ICCPR.  There is direct reference in BORA to the ICCPR  Bagen: the house owners wanted damages for a breach of rights by the police. o Problem: there is no remedies section in BORA o Article 2(3) ICCPR was used - 'people must have ability to implement remedies' = remedies is a RIGHT. o Purpose: parliament would not have implemented BORA without giving remedies, does not make sense. Comparative and International Law If we all have HR because we are human: then every single judgement from every constitution can be precedent.  UK Human Rights Act 1998 / Supreme Court  Canadian Charter / Supreme Court  European Court of Human Rights  ICCPR: Human Rights committee  Indian Constitution/ Supreme Court 1. Was there a rights violation 2. Was this violation justified = lots of precedent  NOT: US Supreme Court o State doesn't have same s 5 idea of limit rights + justify them o Example: soft porn = freedom of expression // hard porn = NOT freedom o In our jurisdiction: we say is the porn a justified limit?

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Under this US model = difficult to change rights

White Paper  Helps interpret BORA because it provides analysis of the individual provisions proposed to be included in it.  It shows what provisions proposed did NOT make it which helps interpret the purpose.

Section 3 The Bill of Rights applies only to acts done: Broad/general/purpose approach = omissions. Section 3(a): if you can find a case against the state in some form Section 3(b): Section 3: Legislature examples of right's restrictions  Content of the legislation  Speaker's Ruling (Police v Beggs)  Select Committee proceedings and reports Section 3: Executive examples of right's restrictions  Content of governmental manuals  Police and military action  Orders made in the court and tribunals Section 3: Judiciary  Sentencing  Manner in which the courts conduct proceedings...