Human Rights

Front 1

What is a summary of the Human Rights principles?

Back 1

Human Rights:

1. Discrimination is where, public or private, one group is unjustifiably treated differently. 2. To establish discrimination use a comparator group: which is the same except in the grounds of discrimination.

3. Indirect and direct discrimination is in contravention - where it unintentionally has a disproportionate effect on a group.

4. Discrimination is legal if it is affirmative action.

5. Discrimination is legal if it is justified under a strong social objective.

6. The court will search for justified limitations (section 5), and then a less inconsistent meaning (section 6), and then only should the statute override (section 4).

Front 2

What is discrimination under Ministry of Health v Atkinson and other cases?

Back 2

Quilter v AG → This used to be the leading case until Ministry of Health.

Ministry of Health v Atkinson → This was about 7 parents of 2 disability children. They were not eligible for an allowance from the govt. for taking care of them full time. Non-family caregivers are permitted an allowance. The questions to be asked were:

1. Was this discrimination on grounds of family status? The Human Rights Tribunal and the High Court said that yes, this is discrimination. However, notoriously, the govt overrode this decision. To answer this it needed a two step test:

1. Asking whether there is a differential treatment or effects as between persons or groups in comparable situations (comparator group) on the basis of a prohibited ground?

2. → A comparator group is a “substantially similar” (section 22(1)(b)) situation for a group differentiated only by one or more of the prohibited grounds. For example: Quilter v AG had heterosexual couples as a comparator group for same-sex couples being treated differently under the Marriage Act. It must be substantially similar in the core aspects of a job, not the mere details. Thomas J: “The key question is whether the distinction or differentiation has the effect of imposing burdens, obligations, or disadvantages on some individual or group not imposed on others.” Heterosexual couples could marry, but same-sex could not. asking whether the treatment results in material disadvantage?

Front 3

Was the limit on the human right in Ministry of Health v Atkinson justified, and why?

Back 3

The response to this was that if the govt had to pay for all parent caregivers, it would cost a lot. Why should the govt pay people to take care of their children? It was ruled that is not justified and resulted in the NZ Public Health and Disability Act, Part 4A.

Example: McAlister Air NZ [2010] 1 NZLR 153 was a case where a pilot, upon turning 60 had been terminated as a pilot in command of planes in countries where it was not allowed for 60+ year olds to fly. McAllister took this to court for discrimination on the basis of age. The Supreme Court held 3-2 that it was unlawful discrimination, but Air NZ had a defence under section 30 HRA which provides discrimination is permitted if: “... if the rule is a general occupation hazard under that of regulating safety.” With age comes difficulties of mind, sight, and body, and Air NZ held to this. The Courts held that a comparator group for McAlister would have been pilots under 60, as age is the only thing that changes. However, some held that you could compare it to a pilot under 60 with some other impediment and how they are treated.

Front 4

What about indirect discrimination and section 65, and discrimination in the public sector?

Back 4

Section 65 → This is where the effect is discrimination is prohibited, even if the purpose is not in action. It appears neutral, but has a disproportionately negative impact of a select group. However, the alleged offending party may escape liability for good reason if proved.

section 20I → This part holds that any “act or omission” of any government body under section 3 that is discrimination is in breach of this act as well, not just in the private sector. Originally the BORA was aimed at the Public Sector and HRA at the private sector, but this soon changed. It encourages the culture of justification in section 5 of the NZBORA, and allows for and supports robust decision making in politics.

Front 5

What is the Part 1A methodology and how is it applied in regards to affirmative action?

Back 5

1. Part 1A covers any potentially discriminatory government act.

2. All bodies are covered except where public body is acting as private individual.

3. The claimant must bear the onus of proof in showing there is a (a) a material disadvantage though (b) a comparator group. The onus then shifts to prove that this was justified.

Affirmative action is permitted. [ss19(2) BORA, s73 HRA], in that “Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination” are not discrimination. section 73 → This echoes the above but further defines in saying, “in order to achieve an equal place with other members of the community.”

There needs to be a real prospect of addressing the issue for this section to apply, and the measure should cease once addressed with ongoing monitoring. There must be a nexus. All this was demonstrated in Amaltal Fishing v Nelson Polytech. 5. It may be justified if it is established that it serves a strong social objective that is “pressing” or “substantial”.

--> Remedies include being awarded damages and orders of specific performance.

Front 6

How do justified limitations and conflicts of rights interlink?

Back 6

B & B v Director-General of Social Welfare → A Jehovah's witness' right to religion does not override a child's right to life. This is called definitional balancing of rights.

Schubert v Wanganui District → It was argued that a WDC bylaw was an unreasonable restriction of freedom of expression. Section 5(6) of an act permits councils to make reasonably necessary bylaws in order to reduce likelihood of [gang violence in his case].

1. There was a sufficiently important objective.

2. The limit of free expression was rationally connected.

3. It was arguably not done proportionally, however. Therefore it was not a justified limit and the courts could give remedies.

Brooker v Police → This was about the definition of "disorderly manner" and freedom of expression. Blanchard J said: “The court needs to ask.. treating a particular behaviour in part… constitutes justified limit [of that right].”

Front 7

What is the Hansen methodology in relation to section 5 and Hansen?

Back 7

Hansen established the order of s5 --> s6 --> s4. There is a six step approach:

1. What is the natural meaning?

2. Does it create an inconsistency with a particular right prima facie?

3. If there is an inconsistency, consider whether it is justifiable?

4. If justified, adopt the natural meaning and legitimized.

5. Is there an alternative meaning to be preferred in line with the NZBORA. under section 6? If found, this is adopted. Identify the particular relevant case:

- choosing between two distinct meanings

- constraining open ended admin powers (Zaoui)

- constraining delegated legislation (Schubert)

- General words involving questions of judgement, degree or intensity.

6. If found adopt that meaning. If not, adopt natural meaning under section 4.

Section 5 is a utilitarian calculation. While few rights are absolute, the courts will consider the constitutional ‘worth’ of rights and freedoms - such as in Noort, where access to legal counsel was described as “part of our basic constitutional inheritance.” The courts ask where the balance of public interest lies (that is of a free and democratic society). To find this it must look into all economic, legal, moral, social interpretations of the issue.

Front 8

What is the Hansen methodology in relation to section 5 and Oakes, and what does Joseph say?

Back 8

Oakes → It embellished the other requirements in the proportionality test in saying that a justified limitation must “achieve a social policy”, and not just be “rationally connected”:

- there must be a rational connection between the measures and the “sufficiently important” objective they are to serve.

- the measures should impair as little as possible the right or freedom in question.

- the deleterious effects of these measures must be justified in the light of this objective that they are to serve.

→ However, the law is contentious and Philip Joseph is certain of a movement towards a rights-based constitutionalism in the courts, whether it be de facto or de jure in the future. Elias CJ is in fact a proponent of this exact model.

Front 9

What are the parameters of section 6?

Back 9

Sir Robin Cooke described section 6 as a “weapon of justice in the hands of judges” - allowing them to bend the rules (if not open a discussion as to breaking them in this rights-shifting constitutionalism) towards protecting the individual and their rights over legislative domination. Hansen ruled it is to be applied if it cannot be justified under section 5. The NZBORA has been interpreted purposively to promote a “guarantee” of these rights, and not a narrow possibility. In Ministry v Transport v Noort it was endowed with the words: “now evidently destined for judicial immortality.”

Moonen v Film → The courts, under section 6, must prefer a consistent or more consistent meaning that infringes less on rights to any other meaning. It is not about the least possible reasonable limitation, but the least possible limitation entirely. The courts enjoy a “margin of appreciation” in its choices.

Hansen v R → The Supreme Court has taken a firmer approach to section 6 than previous courts. It applied whether or not there was textual ambiguity. It may also allow for linguistically strained interpretations, a symptom of this rights-based constitutional movement. The section provides wherever it “can”, it shall. The only restriction on this is that it must be “intellectually defensible”.

R v Pora → Direct and explicit words are needed to override fundamental rights, symptomatic of the rights based-constitution slowly taking form in the courts.

Front 10

Section 7 and reform around declarations of inconsistency

Back 10

Upon inconsistency, section 4 may be applied but section 7 issues a declaration of inconsistency, whereby the govt. must be confronted with this and may be open to changing, flexing, or answering to the inconsistency either publicly or legislatively. One example is in R v Poumako [2000]. It is arguable that we need reform of the Human Rights dealings in NZ. They are not supreme law and are subject to policy. The NZBORA Amendment 2015 is being introduced to encourage extra accountability, but this is still greatly limited.

Tipping J noted the courts “should be able to alert parliament to tyranny… social value in bringing attention to inconsistency" for section 7 reports.