Nzbora Notes

NZBORA Part 2 - Civil and political rights Life and security of person 8. Not to be deprived of life 9. Not to be subjected to torture/cruel treatment 10. Not to be subjected to medical/scientific experimentation Search, arrest and detention 21. Unreasonable search and seizure 22. Liberty of the person 23. Rights of persons arrested or detained 24. Rights of persons charged 25. Minimum standards of criminal procedure 26. Retroactive penalties and double jeopardy 27. Right to justice The NZBORA sets a benchmark for lawful conduct by the government, and non-governmental but 'public' actors. Rights imply the existence of a corresponding legal duty upon another to accord the right The opposing duty constitutes the right. Freedoms denote liberty or the absence of restraint and coercion. Freedoms are inherent and need no law (or corresponding duty) to call them into being. If a freedom is phrased in terms of a right ("a right to freedom"), then this implicitly commits the government to a duty to observe the right. Rights are labels for entitlements we regard as generated by a set of reasons that sufficiently justify placing a corresponding duty on others. Important, as in applying a right we must consider whether its limitation is justified. The underlying purpose of the right must first be established, so that the justificatory reasons for it can be set against th ose for limitation. Procedure for a NZBORA question: 1. 2. 3. 4. 5. If review of a public function/power/duty Identify the BORA right in issue Ask whether a s 3 entity is restricting the right (a) Executive/Judiciary/Legislature (b) Public power/function/duty pursuant to law i) R v N - wholly private conduct by private citizens is controlled by general law of the land ii) Ransfield factors iii) Dunne & Anderton (If power is given pursuant to statute) Consider whether the restriction is justified under s 5 1. What is the objective of the limit? 2. What are the means used to achieve that objective? i) Means rationally connected to end? ii) Means minimally impairing? iii) Overall proportionality? (Between end and means) Remedy? 1. Breach of BORA may be separate cause of action - Baigent's 2. Not automatic - Williams 3. Exists for 'vindicating rights' - Taunoa Interpretation of a statute (R v Hansen) 1. Read statute, ascertain Parliament's intended meaning. 2. Ascertain whether this meaning is apparently inconsistent with a BORA right 3. If inconsistent, ascertain whether this is a demonstrably justified limit in terms of s 5? Onus on state ('demonstrably') 1. Does limiting measure serve a sufficiently important purpose to justify curtailing the freedom? 2. What are the means used to achieve that objective? 1. Means rationally connected to end? 2. Means minimally impairing? (greater than reasonably necessary) 3. Overall proportionality? (between end and extent of limitation of rights) 4. Does another meaning (less in)consistent with the BORA exist? If so, must be adopted. 5. If no, section 4 - Courts cannot ignore statutory provisions (just because they are inconsistent with BORA). Section 3 S 3(a) looks to the status of the concerned actor Executive, Legislature or Judiciary S 3(b) looks to the actions of the concerned actor "Any person or body in the performance of any [public function, power, or duty] conferred or imposed on that person or body by or pursuant to law" (Will always be a person/body, function/power/duty will always be pursuant to law (or else it would be illegal already, wouldn't need NZBORA) So issue: "public" R v N [1999] CA N stole a battery pack, was chased and detained by a store member, held in a backroom. N tried to show the detainment was an arbitrary arrest, contrary to the right in s 23. But first had to show the BORA applie d to the person's actions. Draws a dichotomy between wholly private conduct by private citizens (which is controlled by general law of the land) and pub lic functions conducted by private citizens pursuant to the law. Dichotomy drawn up between wholly private conduct, and public function/power/duty conducted by private individuals pursuant to law. The Crimes Act deals with citizen arrests in two ways: 1) Creates a public duty to help in an arrest (if an officer requests help) 2) Creates protections/justifications for citizens performing arrests (excuses them of criminal and or civil liability) Arrests performed pursuant to class (1) would be a 'public function', those which are merely excused (2) are not. Because the arbitrary arrest was not performed by an actor who the BORA applied to, the BORA could not be used to exclude the evidence, so it could be usd. Narrow distinction drawn. Public Page 46

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