Public Law BORA Lectures 2019 PDF

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Lecture notes for Bill of Rights section of LAWS213 2019....

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LECTURE 17 – Petra Butler, BORA Human rights have no boundaries. They are an integral part of today’s society. – Demetrio Zema Example1 – Hannibal and Frank  Section 8 Right not to be deprived of life Hannibal puts an ad in the paper and on the internet asking whether someone would like to be killed by him. Frank gets in touch with Hannibal and they agree that Hannibal should use a knife to kill Frank. Hannibal videotapes the slow killing of Frank. On one hand, Frank did consent to being killed. However, probably not a good idea to allow it. Even having a right to consent to death (non-existent) doesn’t given Hannibal the right to kill Frank. - Who does the right belong to? Can Frank consent to being killed? Court said even if Frank consented, they can still convict Hannibal for manslaughter. Some rights cnat be give away. Informed consent to death doesn’t really work when you have no idea what it’s like to be dead. Democracy: - Everyone has equal rights, relinquishing rights given by law leads to inequality - The state has a duty to protect peoples rights, it’s a slippery slope if the state relinquishes some of this obligation - No hierarchy or rights in theory (technically), but the right to life is practically placed higher by the state Relinquishing freedom of speech v freedom of life – is there a difference? Both are voluntary, but one is temporary and passive v the other being active and permanent

Example 2 – Betty Betty, a young woman, fell into a deep coma following a car accident. She lost all of the psychological capacities associated with personhood: consciousness, self-consciousness, moral agency, language ability, rationality, purposiveness, and sentience. Betty’s loss of capacity was irreversible. Different situation, had a situation thrust upon her - No ability to exercise her rights If the state declares her “not a person” anymore, then where do they draw the line? Can the parents keep her on the machine? Can her husband turn it off? What is the difference in example? 1. Actively takes a life, despite being given permission 2. Requires active action to keep someone alive

Freedom of expression – BORA - Everyone has the right to freedom of expression, including the freedom to seek, receive and import information and opinions of any kind Article 17 ICCPR 1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Where’s the balance? Noise control kicks in after 11pm… How do we know there are human rights? - People are prosecuted for breaches; remedies are available for having rights infringed upon - Rights/ideas developed through religion, morals, philosophy

- They exist because people believe they exist - Rights are forever changing, number of rights fluctuates New right: right to healthy and sustainable environment Human rights methodology Deontological: there is a philosophical justification because thy are good, even if they serve some purpose of ulterior motive Teleological: the exercise of human rights advances society or provides advantages for individuals or groups Liberal rights: arguably, we need human rights to further our own aspirations and develop individual autonomy Social rights: social and economic aspects of society to give opportunities for rights so society can function Natural rights: we need some sort of natural order to constrain human nature, working towards and facilitating the overall goal of humanity Positivism: rights come from UDHR, ICCPR, NZBORA (most recent) etc. the legal framework tells us we have rights Asia and the Pacific have no formally agreed on document of rights – why? The ICCPR is very western, and may not fight everyone’s values Are all humans the same intrinsically? (natural order) Do Pacific customs prevent them from adhering to the UDHR?  There has not been a society found that does not share the most basic human rights (freedom of speech, etc). these rights may take difference forms, but they all exist. NZBORA 1990 - Started in 1985, top down approach. Took so long because people were generally happy in NZ at that time - Nothing that kick-started a need for a human rights act - Geoffrey Palmer was inspired by the American constitution rights - The original proposal was for a Supreme BORA where courts can strike down legislation that is non-compliant with human rights - NZBORA was unique in the world at the time

LECTURE 18 Why do we have human rights? – Review  Seven methodological Rights exist because people believe they exist and have made law accordingly - Human rights can be used in courts - People can tell when rights have been violated - The core of human rights are the same in every society, but each society has a slightly different interpretation - Human rights are broadly universal, and cannot be unjustifiably limited Interpretation principles Overall principle of generous interpretation  Sections 4, 5 & 6 BORA Must give the Act a generous interpretation, but can’t overshoot the target (Cook’s fundamentals) NZBORA does not have a remedies provision - Apparently interpreting a section of the Act that doesn’t exist is not overshooting the target though (?) Purposive Approach  Section 5(1) Interpretation Act 1999 Words in a statute must be read in light of the purpose for which the statute was passed or designed for This approach in explained by the other interpretation principles NZBORA is not supreme law, but should act as a guide for other legislation

Generous interpretation is of great importance, but second to purpose Example: Court decides there is a provision missing in the Act so the Court creates one Can’t do, because this undermines the purpose of BORA not being supreme law - When there is tension between statutory BORA compliance, to what extent can the courts take an active role? Or should they just act in an interpretative capacity?

BORA as a Scheme Emphasis on the importance of considering each section in its context in the statute Example: Bill Clinton – Auckland Queen Street shut down after a rally on the basis that protesting isn’t allowed there - BORA does not have a right to protest, but could argue that sections 14 and 16 combine to be read as a right to protest under the scheme of BORA  Section 5 Justified Limitation – the fact that s5 is placed between s4 and s6 indicates how this provision is meant to operate Taylor: issue of whether the courts were able to issue a declaration of inconsistency Discussion of where a remedies section should be placed in the Act Where something is placed in an Act is done for a reason, e.g. Right to Life is always first, despite there being no hierarchy of rights

Common Law and Statute Common law is a development of law that uniforms the background for legislation Example: fluoridation of water, medicating people without their consent? - Crown and common law submission, courts affirming methodology (more to come)

ICCPR Jurisprudence of Human Rights Committee NZBORA was created as an affirmation of obligation to NZ’s participation in the ICCPR Just because a right isn’t in BORA doesn’t mean it doesn’t exist elsewhere Example: Baigent – NZBORA contains no remedies clause - Police had an incorrect search warrant, Baigent sued the police - Used article 2 and 3 of ICCPR to show that rights must be implemented, and remedies provided for breached of rights. This would violate the ICCPR and make no sense to give rights without any penalty for breaching these rights e.g Right to Privacy: not in BORA explicitly, but in ICCPR which is affirmed in BORA. Tort is an embodiment of rights, but not a right itself in NZ ICCPR can be relied onto fill the perceived gaps in BORA if those gaps were deliberately created by Parliament

Comparative Law Every bit of case law could be a precedent NZ looks to the UK for interpretation, also Canada (Canadian Charter of Rights), Indian constitution is also quite innovative, European Court of Human Rights - The Pacific looks more to the UK than to NZ or Aus NZ does not look to US very much – different methodologies. In NZ, the victim has to prove a right has been violated. The State has to prove that the violation was justified, as is the view of most modern constitutions.  US was the first constitution to be fair and understands that sometimes rights have to be limited – it’s a balance of society.

Example: US decided that soft porn counts as freedom of expression, but hard porn does not. In NZ (and everywhere else), all porn counts as freedom of expression but justifiable limits are placed on that freedom (e.g. R ratings, paywalls) If we have rights because we are human/they are ingrained in international instruments, can those rights be altered? Example: Germany 1970s – denying same-sex marriage is discrimination, but justifiable because of Christian roots of the country. 30 years later, same question but different ideologies, so different outcome. - Different societies will come to different conclusions about justifiable limits on rights, despite sharing the same core values. E.g. individual religious values, political opinions, varying social values etc The White Paper Parliamentary debates, section 7 addition/importance - Analysis of provisions proposed to be included in NZBORA and likely interpretation by the courts  Section 3 Application a) When does the BORA actually apply? The State is always the respondent in BORA cases. Applies to the State in one form or another, not to private issues Does s3 only apply to acts done, or does it include omissions? - The statute refers to acts “done”, but a generous approach would include omissions - A decision not to act is still an act - Can’t take too generous an approach so as to stretch the meaning of the words and Parliament’s intentions when they may have only intended positive acts to be covered The common law already has trouble with acts of omission, positive actions carries more weight However, in general the interpretation of s3 does include omissions

What can help with interpretation? - Actual content of the legislation - Speaker’s ruling - Select committee - Any action done by the Executive - Departmental circulars - Manner in which courts conduct proceedings, rules of the courts All of the above are subject to BORA scrutiny

LECTURE 19 NZBORA s3 Application a) Applied to branches of govt: Legislation, Executive & Judiciary b) Applies to public bodies performing govt functions Only applies to public interest issue, not private grievances How does the Legislative limit freedoms? - By acts of Parliament (e.g. legislation) - Speaker’s orders How does the Executive limit freedoms? - Policing - Student loans

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Parking tickets Transport NZ

How does the Judiciary limit freedoms? - Applying law - Allowing justified limitations - Rules of conduct in Court Section 3(b) also applies to private citizens where they are performing public/govt functions At what point are these bodies exclusively private, and when do they become public (executive) bodies? Interpretation principles + s3(b) Take a broad and generous approach so that as many private persons come under “public function” as possible in the interest of protecting rights Can strain the wording of the statute, but must be careful to not overshoot the mark Law Volume Vehicle Technical Association Inc. v Brett (2018) The Low Volume Vehicle Technical Association Inc (LVVTA) has had a long and challenging relationship with John Brett (Mr Brett). Mr Brett used to certify low volume vehicles (LVVs) until his authority to do so was revoked by the New Zealand Transport Authority (NZTA) in 2012. Mr Brett continued to maintain a website containing a steady stream of criticism of the competence and integrity of the LVVTA and its Chief Executive. In 2014 the parties entered a Settlement Agreement over alleged defamation by Mr Brett that governed how Mr Brett would express his opinions in future. In 2015 the LVVTA and Mr Johnson issued these proceedings for defamation by Mr Brett in 35 statements and for breach of the Settlement Agreement. They seek a permanent injunction, damages of $250,000 each for defamation and their legal costs for breach of contract. Mr Brett seeks an apology and costs. Mr Brett submits the Agreement breached his right to freedom of expression. The Bill of Rights, under s 3(b), applies to the LVVTA. In light of Ransfield - Brett submits the Agreement breached his right to freedom of expression under BORA s14. - Does s3(b) applies to LVVTA? Settlement Agreement does not equal a contract regulating how Brett can express his criticism. Ransfield found that no breach of freedom of expression occurred. Does LVVTA enjoy special powers or authority conferred by law, under constitutional duties to act only in the public interest? YES. Despite Ransfield being a 2005 case, the Court in 2018 applied the precedent to determine whether the LVVTA is included in s3(b). The question arises whether LVVTA was performing a function when entering into the Settlement Agreement? 1. Compare facts of other cases 2. Summarise law of precedent case, take principles 3. Apply to present case

Ransfield - Does the private radio station come under s3(b)? Broadcasting Act didn’t help First issue: is there any statutory duty? NO Second issue: are the radio stations performing a public function? - Criteria of public function: [69] of Ransfield , list and discussion - [36] what are the rights at stake? Freedom of expression, makes a democracy democratic, very important

Brett – is this as an important a decision as Ransfield ? [50] Acts fall under s3(a) when the act is performed by a govt branch. Conduct that is wholly private is left to be controlled by general law Other NZ cases - Factors Federated Farmers: Line 15/16 [51] ‘Controlled by the Crown’ is a decisive factor TV3 Network: impact on the public (Cooke P) Lawson: extent of control by share-holding ministers M v BOT PNBHS: agency – never taken up in any other courts. Schools come under public entities, but BOT was not amenable to judicial review Comparative approach Other UK or Canada decisions Ransfield shows the process the Court goes through when deciding BORA cases Ransfield [69]: It will depend on context which precedent best applies The criteria aren’t determinate. There is a distinction between the nature of the public entity and the function being performed. [69] is just a list repeating the criteria from other judgements, it doesn’t actually create new law Brett Court decided LVVTA did provide a public function when entering into the agreement Contract governed by private law doesn’t negate the purpose of the contract being related to a public function LVVTA is a private body, but performs a public function that must be in accordance with BORA s3(b) which they entered into the contract to stop criticisms of its exercise of this public function Private contract does not equal private function Ransfield is less about human rights impact for society, but is more focused on the outcome in relation to the plaintiff in question

LECTURE 22 Human rights methodology Moonen v Hansen tests Moonen 1. Define the scope of the right 2. Determine if the interpretation fits the definition a. If the fact situation fits the definition, no violation b. If a definition cannot be made wide enough to cover the facts, there is a violation 3. Was there a justified limitation on the right? (Section 5 test)

Hansen 1. Define the scope of the right 2. Ascertain Parliament’s intention 3. Find meaning consistent with this a. No inconsistency (s6), no violation b. Yes inconsistency, yes violation 4. Use s5 for demonstrably justified limitation in light of Parliament’s intention

If the decision maker is given discretion = Moonen No room for discretion, either something is or isn’t = Hansen Brooker v Police (2007) At about 9:20am Brooker went to the home of Police Constable Croft, "believing that he had been the subject of harassment over a number of years by the police, and by Constable Croft in particular". Brooker had decided to stage a protest, and Having tried to contact her at work, he went to her home, knowing that she had been on night duty and was likely to be there. He parked his car on the grass verge outside her front fence, walked onto the property and knocked on the front door. After about three minutes the constable came to the door. He suggested to her that she did not like being woken up, and she told him to “piss off”. He withdrew to the street and began his protest outside her front fence. He had with him a square metre placard on which was written “No more bogus warrants” and which he lent against the fence. He then began playing his guitar and singing in what the trial Judge described as a “relatively” loud voice.  Summary Offences Act 1981 Offensive behaviour or language, warrants a Moonen analysis “behaves in an offensive or disorderly manner” is subjective to the decision-maker Majority held it was not an offense Tipping J: SOA doesn’t cover private actions, but she is a police officer so it becomes a question of private-public nuisance as well. However, as she is at home and off duty, does BORA apply? - Brooker charged under s4 SOA, BORA used to interpret - Conduct in a qualifying location is disorderly if, as a matter of time, place and circumstance, it causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear. Unless that is so, the conduct will not warrant the intervention of the criminal law. If it is so, the public has a legitimate interest in proscribing the behaviour, and thereby protecting citizens from it. In this way public order is protected McGrath J: minority think freedom of expression extends until disorderly conduct becomes criminal - Section 5 can be justifiably limited until this point

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Under s 5 of the New Zealand Bill of Rights Act, all fundamental rights and freedoms may be made subject to such reasonable limits, prescribed by law, as can be demonstrably justified in a free and democratic society. In order to be such a limit on the protester’s right of free expression, the offence of disorderly behaviour must be restricted to conduct that amounts to a sufficiently serious and reprehensible interference with the rights of others to warrant the intervention of the criminal law. At that point the protester’s legitimate exercise of freedom of expression ends

Moonen Test 1. identify objective of provision 2. Importance and significance of the objective 3. The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. “A sledgehammer should not be used to crack a nut”. (a) Means used must also have a rational relationship with the objective (b) In achieving the objective there must be as little interference as possible with the right or freedom affected. (c) Limitation involved must be justifiable in the light of the objective Allows for more leeway than Moonen ‘Reasonably necessary’ is more flexible International jurisprudence is usually the least possible interference Moonen is used where the decision-maker is given discretion, so need to ensure the definition allows for the least interference possible Must have a stricter s5 test

Hansen Test 1. Does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom? 2. (a) It the limiting measure rationally connected with its purpose (b) Does the limiting measure impair the right or freedom no more than reasonably necessary for sufficient achievement of its purpose. (c) Is the limit in due proportion to the importance of the objective?

Hansen test only has two outcomes – either something is included, or it isn’t. Cost-benefit analysis is allowed Elias CJ says the govt is in charge of s5, not the courts (other judges disagree). This allows govt a margin to assess the limit themselves. Court steps in when a right is significantly infringed upon, more than can be justified as ‘reasonably necessary’

Re Application by AMM and KJO  Section 3(2) ...