LAWS 206 - 'Rights' - Part 2.

LAWS 206 - 'Rights' - Part 2.

Assessment

Flashcard

World Languages

KG

Hard

Created by

Abdullah Zahid

FREE Resource

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8 questions

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1.

FLASHCARD QUESTION

Front

What does s19 of NZBORA state? Why?

Back

-S19 of NZBORA protects the individual from being subject to discrimination, because of their skin color, gender, religious beliefs, political stance, nationality etc.

<-This is because NZBORA re-iterates the freedom from discrimination right protected under the ICCPR, and implements it in NZ.

2.

FLASHCARD QUESTION

Front

What was the 'conundrum' identified in the case of Hansen?

Back

  • -Tipping J acknowledged the argument that parliament should have the power to enact legislation that is inconsistent with NZBORA, because it is democratically elected.

  • -However, Tipping J argued that unelected judges should have the power to use their discretion and interpretation of statutes to limit Acts of parliament that are inconsistent in NZBORA.

  • -This is because the majority can discriminate against minority rights.

3.

FLASHCARD QUESTION

Front

What is a remedy that the court can provide to individuals who have suffered human rights violations in NZ? Why?

Back

-Under s7 of NZBORA the A-G has an obligation to produce a report on any legislation that is inconsistent with NZBORA.

<-This report notifies the public as well as parliament that the executive intends to pass legislation that is inconsistent with NZBORA, which can have political consequences.

<-However, this remedy can be limited if the A-G perceives the statutes' inconsistency with NZBORA as being justified.

<-In such cases, the A-G is under no obligation to make a s7 report.

4.

FLASHCARD QUESTION

Front

What is the Hansen approach, and why is it relevant?

Back

-The Hansen approach consists of 6 steps taken by the courts in order to decide whether a statutory provision that on its face seems inconsistent with NZBORA (like in the tutorial question) can be interpreted in a way that is consistent with NZBORA.

-This 6 step process, consists of:

1) The courts ascertaining the natural/ literal interpretation of the statute.

2) The courts determining whether an NZBORA provision conflicts with the statute.

3) The courts deciding whether such a confliction is reasonably justified (under s 5).

4) If that is the case then the courts must enforce the provision (under s 4).

5) If not then the courts must ascertain whether the provision can be read in a way that is consistent with NZBORA.

6) If that is the case then that interpretation is to be preferred, otherwise the inconsistent provision should be enforced as it is (under s4).

5.

FLASHCARD QUESTION

Front

How do you determine whether an infringement on a right is a 'justified limit'?

Back

1) The courts must determine, whether the objective that the infringing statutory provision is intending to achieve is important.

2) Are the infringing means in the provision used to achieve the objective proportionate to the detriment suffered by limiting a right in NZBORA?

3) What is the extent of the infringement of the NZBORA right?

4) Is the detriment suffered by the infringement, proportionate to the importance of the objective that parliament is pursuing?

6.

FLASHCARD QUESTION

Front

How far can the courts go in bending legislative words, to derive an interpretation that is consistent with NZBORA?

Back

In the case of Fitzgerald the court demonstrated an ability to bend words in inconsistent legislative provisions, so that the legislative provision was inapplicable in a case where the result of a strict application of the provision would result in an NZBORA right being violated.

As long as the interpretation does not undermine the purpose of the act, courts can ascertain such a meaning, even if it does not align with parliament's intention - AMM.

This is because s6 of NZBORA denotes that the courts have a duty to interpret legislation in a rights consistent way, wherever possible.

7.

FLASHCARD QUESTION

Front

What are some limits on the courts interpretive ability?

Back

*Answer to this is underlined in blue in your notes.

8.

FLASHCARD QUESTION

Front

What are some policy justifications for this interpretive ability of the courts?

Back

*Check the green highlighted notes in your book.