importance of WW2 to human rights
changed the relationship between the citizen and the state from what can the citizen do for the state, to what can the state for the citizens
influence on law
law is an expression of the relationship between the citizen and the state therefore recognition of human rights has changed the way we practice law in NZ
human rights important because…
- rights are fundamental to representing individual liberty
- suggests a shared dignity between people
rights establish a check on power
political decision-makers must take rights into account. We can ensure this through the A-G, as she has responsibility to report to Parliament when a bill may potentially breach the rights laid out in NZBORA
judicial review on rights
going to courts saying rights have been infringed and asking them to change this.
rights are political claims that the legal system responds to
it is a claim that our interests are so special they should be privileged in standard practice of government
We want political decision-makers that are democratically electable to make decisions about our rights as we can vote out if legislating against our rights
parliamentary bill of rights
NZBORA ordinary legislation, can be amended or repealed by Parliament whenever due to PS
NZBORA recognises PS in s4 but can’t do anything to stop Parliament legislating over it
prisoner right to vote
s12 of NZBORA
by taking this right away, Parliament is undermining rights and has means to do so, hence Parliamentary bill of rights, as it is unlawful but no one can stop them
Bill of Reasonable Rights
S5 of NZBORA provides that rights can be breached if it is reasonably and demonstrably justified in a free and democratic society
e.g. if rights to FoE was being used to hate crime against certain groups of people, then rights can be breached
principle of legality
core concept of rule of law
presumes Parliament did not intend to override fundamental rights unless its language is clear and explicit
operates as constitutional safeguard requiring courts to interpret legislation consistently with core principles; human dignity and liberty
consequence of principle of legality
if Parliament wants to violate rights, but not deal with costs, they can pass vague or uncertain laws
proportionality of rights
e.g. by allowing prisoners that have a sentence of under 3 years the right to vote, rather than a blanket ban on everyone whether their sentence is 2 months or 20 years, it is more proportional
how are remedies made
the courts will fashion remedies for breaches if there is not a pre-existing one for a particular scenario. NZBORA does not provide remedies
A-G v Taylor (2018)
Taylor claimed rights had been breached when blanket ban was imposed on prisoner voting
courts couldn’t make Parliament amend legislation but they did issue a declaration of inconsistency, the first case to do so
Declaration of Inconsistency
courts issue a statement that Parliament has legislated inconsistently with rights, which then brings public attention to the issue
why does parliament protect NZBORA rather than rights being entrenched
- lawyers said this would be inconsistent with how we do things in NZ, don’t know how courts would approach this
- Māori didn’t like the idea, as saw entrenched laws as being put above Te Tiriti
political constitutionalists on entrenchment of NZBORA
they believe NZBORA should have been entrenched because otherwise Parliament gets away with too much
S4 of NZBORA
preserves parliamentary sovereignty by stating legislation can override rights
S5 of NZBORA
allows for a breach of rights only if prescribed by law and reasonably and demonstrably justified in a free and democratic society
S6 of NZBORA
requires as much rights consistency as possible
if legislation is ambiguous, courts will take the most rights consistent interpretation
Hansen framework
emerging default position
ordered s5, s6, s4
because parliamentary supremacy always rules supreme
why have BoR if its easily overridden
because there is no guarantee that the judiciary would do a better job of protecting rights than the govt, better to have people that public can vote in and out as the overriders of BoR
how were rights handled before BoR
common law recognised certain rights, sometimes there was legislative recognition in a sporadic manner. But ultimately it came down to doing what Parliament liked, and would just have to hope they recognised that there needs to be limits with power
example of justified rights being limited
mandatory stay at home order during the pandemic was a justified breach as the overwhelming public concern overrode rights expressed in BoR
