NZ Bill of Rights cheat sheet PDF

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Summary

General exam prep notes/ rough notes some bits may help some bits may be irrelevant. Used to compile relevant content for exams....

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New Zealand Bill of Rights:

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Natural rights theory: Law may be natural because human nature makes it essential for people to be constrained by rules in order to survive or achieve some purpose which is thought to constitute a natural goal for humanity. Positive rights, utilitarianism: Rights come not from nature but from laws duly passed by the supreme political authority of the state, the sovereign legislature.

BORA interpretation: Interpretation principles;

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Human Rights:

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Deontological approach: Human rights are a good in itself, something to be sought whether or not it advances any ulterior purpose. Teleological approach: associates human rights with some further good which the exercise of human rights advances, an advantage either for society as a whole or for an individual or group. Liberal rights theories: Human Rights further the individuals own aspirations, fullest expression to each individuals moral autonomy. Social rights approach: Human rights are only useful if the social and economic structure of society provides a sufficient range of choices to allow people’s capacity for choice to be exercised.

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Purposive approach o “focuses attention on the nature of the particular right infringed and the object which the particular provision is designed to serve.” BORA as a Scheme o Rights, eg freedom of expression, freedom of assembly, freedom of movement = right to protest o Position of s 5 BORA Common Law and Statute ICCPR o Reference to the ICCPR has tended to establish the international genesis of the BORA and/ or particular provisions of BORA, rather than being seen as crucial to the detailed exploration of the meaning and application of particular BORA provisions. Comparative Law

White Paper o Gives background, parliamentary debates – explanation in regard to some of the sections – eg s 7 BORA

How to determine the purpose of BORA?

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Language, Scheme within which the right is intended to operate Historical, social and legal context Meaning and application equivalent in the ICCPR Comparable overseas provisions White paper

Ministry of Transport v Noort [1992] -

Generous interpretation But no overshooting the target

Application of BORA: 1. Issue statement: The issue is whether “s4 of the Code of Conduct breached K’s right to freedom of expression, and what relation this has to ss 4,5,6 of BORA.”

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Includes, plaintiff, def/state-ish actor, action/law/policy – right alleged to be breached

Section 3(a)  Ensures that the defendant is the govt.  Applies to all three branches of govt – exec, judiciary, legislature  Applies to processes and outputs Section 3(b)  Applies to the people exercising the public functions – so the government can’t just delegate its obligations away. Ransfield:  2 people banned from the radio; radio found to be exercising a public function/

2. Section 3 – (a) or (b) Rule/ law: In accordance with sections 3 (a) acts and omissions of the legislature executive and judiciary are covered under BORA. Section 3 is designed to determine whether BORA standards may legitimately be brought to bear on the analysis of the case Application: Then apply the facts.  Consider (a), if not (a) then consider (b)  Consider Ransfield to determine application Note: answer this quickly – e.g “contract with govt suggests that they have govt control, also receiving public funding, apparent that they are standing in the shoes of the govt, enforcing the act. Also there are coercive power to impose fines and prosecute.”

[47] and [69] Ransfield: (for s3(b) BORA)  3. Defining the scope of the right and what the limitation on the facts is:

Conclusion:

1. What is the act or omission that is at issue? Example “the function of providing a venue” – in Mocrief-Spittle v RFAL [2019] 2. Section 3 – is it a or b? Example “ agency” – in Mocrief-Spittle v RFAL [2019] 3. Protected under which BORA right(s)? Example “Freedom of thought (s13), expression (s14), Freedom of peaceful assembly (s16), Freedom of association(s17)” 4. Justifiably limited?  Right’s can be limited if it is justified in a free and democratic society and if it is prescribed by law.  Govt has to function, they are not always focused on individual rights – therefore there is a framework where rights might be limited. Moonen was about:  Legislation, where the words of the legislation were open to interpretation,  Think about it the authority that implements that legislation, has a discretion, has to be a decision made on each individual case, not every case is the same. – therefore, legislation is a framework that needs to be filled out by the implementing authority – they have discretion. Section 3 Ransfield: `...