POSSIBLE RESEARCH IN HUMAN RIGHTS. The New Zealand Bill of Rights Act 1990

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1 POSSIBLE RESEARCH IN HUMAN RIGHTS The New Zealand Bill of Rights Act 1990 Preamble What use has been made of ICCPR jurisprudence in New Zealand Bill of Rights Act 1990 cases? Does the ICCPR and the Human Rights Committee require a supreme law Bill of Rights? Section 3 What is a public function? What sort of law counts as conferring a function that is public (a trust deed, a contract?) In what way is the common law subject to the Bill of Rights? Section 4 Should there be declarations of inconsistency possible (explicitly). What is the experience of other countries that have them? What is the relationship between sections 4, 5 and 6? Section 5 How has the Crown Law and MOJ approached the assessment of reasonable limits in a free and democratic society? How have the courts approached it? How does it relate to the idea of proportionality in administrative law? Where does the Bill of Rights fit into administrative law? As an aspect of ultra vires? Comparative studies of Canada, United Kingdom and ECHR proportionality in their approach to margin of appreciation, deference, least restrictive means etc Section 6 What are the limits of a possible meaning to achieve consistency? What comparative developments have there been? Section 7 Is this working as intended? why so many reports? What is the threshold for reporting, Is it too low or too high? What alternatives are there? What use can be made of the experience of other countries?

2 Section 8 How does the right to life fit into the law of torts: if common law provides no remedy for a culpable killing, is that a problem s 8 responds to? And if so, how? As a reason to develop the common law, or by calling it a breach of s 8 (with a Baigent remedy) What are principles of fundamental justice and when do they matter in New Zealand? Does s 8 speak to euthanasia, abortion Section 9 What is torture in 21 st century New Zealand? And the other terms in s 8? What have the courts done with this? A free standing right against how the law treats people, analogous to the idea of liberty or security [cf recent Supreme Court of Canada case of Bradford re prostitution] Section 10 Section 11 What is medical treatment? Must it be therapeutic in intent? is fluoridation of the water supply treatment? Section 12 Prisoner voting? Here, and comparatively? Section 13 Religion in public life; royal titles, religion in schools; Maori religious observances in public events religious rights of children vis a vis parents what counts as a religion? Section 14 New media, harassment and bullying what is the threshold protected by freedom of expression? Incitement to racial/religious/gay hatred developments here and in other countries offensive speech: Morse, Brooker etc in comparative perspective censorship legislation and how it is working freedom of expression in universities/academic freedom freedom of expression in schools (teachers, students)

3 copyright and freedom of expression choosing children s names Section 15 Clash between religious freedom and equality in the discrimination area Hiring and firing and the right to discriminate (churches, also political parties etc) Exemptions from generally applicable laws for religious reasons Personal adornment (crosses etc) and the impact of uniform laws (includes schools, airlines etc Should employers have to reasonably accommodate religious beliefs in the discrimination context? In other contexts (eg OBAMA care and the abortion/contraception issue); wedding photographers, chauffeurs etc What are religious observances, practices etc? Religious use of cannabis; Sunday observance, Muslim headscarf in the witness box, etc. What are the principles by which we decide what religious practices can and must be accommodated? Section 16 and 17 Not much case law on these: comparative survey to see what they may lead to? Section 18 Freedom camping? Section 19 The definition of discrimination, and how to untangle the questions of: 1. what is a law s purpose 2. what is its effect 3. who to compare with who when deciding if there is different treatment, and whether qu 1 dictates the answer 4. whether it is possible to justify discrimination under s 5 comparative approaches to equality clauses in constitutions religious justifications for discrimination? What does s 19(2) mean Reconciling s 19 with the Treaty of Waitangi in various settings Section 20

4 How does this sit with the Treaty of Waitangi and the DRIP? Section 21 to 26 Search and seizure, right to silence etc, all possible topics Regulatory sphere and applying rights guarantees to agency investigations (eg Commerce Commission) Section 27 the impact of natural justice as a Bill of Rights right (and not just common law) Other What would economic social and cultural rights in the Bill of Rights give us that we do not have already? The experience of other countries? Should the Bill of Rights be supreme law? Should it have a right to privacy/other new rights? Should it have a right to liberty of the person? Baigent remedies survey ACC and Baigent Bill of Rights and local government bylaws The Human Rights Act 1993 The Part 1A jurisdiction: surveying and critiquing cases and experience Definition of grounds: eg family status, political opinion Analysing indirect discrimination case law Other Human Rights in the Pacific: clash with cultural rights Religious freedom in Samoa/Tuvalu/PNG/Solomons Electoral rights and free association and party hopping ;aws (PNG, Samoa) *************** Ideas from which to develop Honours and masters theses

5 [1] Issues identified as priorities in the NZ Human Rights Commission review of human rights in NZ in 2010 Equality and freedom from discrimination Right to justice Substantive equality Evidence from vulnerable people Incorporating a specific reference to equality in the Bill of Rights Act and the Human Rights Act. Developing more appropriate methods for taking and recording of evidence from vulnerable victims and witnesses in criminal proceedings. Freedom of opinion and expression Freedom of religion and belief Section 61, Human Rights Act 1993 Human rights and the Internet Guidelines Reviewing section 61 of the Human Rights Act to ensure it fulfils its legislative purpose. Promoting debate about access to the Internet as a human right and a Charter of Internet Rights. Developing guidelines for respecting diversity of religion and belief in specific contexts. Right to health Rights of children and young people Capacity United Nations Convention on the Rights of the Child obligations Amending the Mental Health (Compulsory Assessment and Treatment) Act 1992 to better reflect the concept of capacity in line with international standards. Ensuring that legislation reflects New Zealand s obligations under the United Nations Convention on the Rights of the Child, including recognising the interests of the child, the age of

6 Rights of sexual and gender minorities Legal equality criminal responsibility, protection under the Children, Young Persons and, Their Families Act, age discrimination protections and adoption procedures. Completing the legislative steps required for formal legal equality, including rights to found and form a family, regardless of sexual orientation or gender identity. [2] Issues dealt with recently in the courts Torture eg prisoners claims Desecration of the flag / freedom of expression From the Human Rights Commission Issues relating to Article 12 of the CRPD, particularly in view of the draft comment by the Committee regarding a paradigm shift being required around implementing supported rather than substituted decision- making. This could lend itself to an examination of the law and practice around the Mental Health (Compulsory Assessment and Treatment) Act and other relevant legislation such as the PPPR Act. Legal issues faced by the intersex communities for example in relation to identity documents and other official records possibly a comparative study with other jurisdictions. Issues related to notices issued under section of the 124 Building Act following the Canterbury earthquake and extension of such notices via order in council - An examination of the associated property rights and the legal issues associated with these actions. The NZBORA as a means of influencing the development of the common law in such areas as trespass, nuisance, privacy via the courts obligations as a s. 3(a) NZBORA actor. There have been quite a few cases in the UK which serve as comparators and examples of how this might and has happened.

7 It offers a chance to survey what has happened in NZ to date and to speculate on what might happen in NZ and to compare and contrast with the UK. There may also be developments in Victoria and the Australian Capital Territory given they have equivalents to the NZBORA.