Civil Liberties 10 March 2004 Selene Mize Please read

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Civil Liberties 10 March 2004
Selene Mize

Please read:

  • CM 64-85* for Mon., 15 March

  • CM 86-92* for Weds., 17 March [light, suggest read ahead]

  • CM 93-122* for Mon., 22 March [heavy]

  • CM 123-132* for Weds., 24 March

  • CM133-143* for Fri., 26 March 1-1:50 pm Moot Court makeup class

*includes some non-required reading

Today: Philosophers, culture and NZBORA

Brief Recap

  • Mill

  • Positions on utilitarianism and liberty not totally consistent

  • Government can only act if other people are harmed or at serious direct risk of harm (physical, financial, not offended sensibilities)

  • Euthanasia, polygamy, sado-masochistic sex, heroin, not wearing seat belt, consensual cannibalism etc would all be legal


  • Original position - not know how you would be born into the world, what gender, what skills, rich parents, etc. How would you design rights if you were this ignorant (avoids bias)?

  • Rawls’ conclusions (others disagree):

  • Freedom

  • Equality (including of resources, unless others better off)

Dworkin - Taking Rights Seriously

  • Many support balancing rights with social costs, seeing them as equally important.

  • Cigarette advertising ex.

  • Problem is, if rights are limited to those that are cheap or free, people will have very few rights.

  • So Dworkin disagrees. Rights trump non-right interests. 2 motorcyclists ex.

  • To supercede rights, there must be a compelling or unusual reason

  • The values protected by the original right are not significantly at stake here (strip dancing ex.)

  • Some competing right is abridged (not right vs. interest, but right vs. right) (more on balancing next week)

  • The cost to society is not simply incremental, but of a degree far beyond the cost paid to grant the original right (nuclear bomb plans ex.) (see Smith’s analogous “compelling state interest” test CM 31)

Dworkin recognizes these fundamental rights:

  • Human dignity

  • Political equality

Similar approaches:

  • HLA Hart’s modified democracy (protection for minorities) because they lack the ability to use democracy to protect themselves.

  • US Constitution’s stricter scrutiny


Lord Devlin: Mill is wrong, culture has right to defend itself, ban things even where no one is hurt. Rights should be defined by culture, not Mill’s philosophy.

Culture as a source of laws and rights in NZ

  • Legislation

  • Tobacco & alcohol vs cannabis

  • Sunday/holiday trading

  • Education Act exemption (CM 50)

  • People’s expectations

  • Eg medical vs dental

  • Application of the law

  • Common law derives significantly from culture

  • Nude beach ex.

  • Reasonableness of force ex. (Erick and Ausage approaches CM 51)

Should culture be influential?


  • Easy to define and apply (look to history)

  • Stability, less economic loss

  • Happiness, way of life not disrupted

  • Has popular support (impliedly)

  • Democracy gives people what they want (although occasionally, Parliament leads social change, eg parental leave for men)

Should culture be influential?


  • Culture haphazard, piecemeal, may be based on misconceptions

  • May be biased against particular groups, unfair (eg sex harass as compliment, gay sex illegal, OK to bare breasts sexually but not for breastfeeding)

  • Dominant culture gets the most deference

  • Reliance on culture means resistance to change

Is NZ monocultural?

  • Noonan says so (CM 38)

  • Compare with English law (and the persuasiveness of overseas law vs Maori customary law)

  • Some change (eg recognition of Maori language)

  • Nevertheless, on balance much less recognition for Maori culture than pakeha (eg whakapohane)

Are foreigners allowed to keep their culture when in NZ?

  • Sometimes yes

  • Mill: often the individual’s private sphere

  • Ethnocentric, cultural imperialist

  • School uniform deviations ex.

  • Sometimes no

  • Devlin: NZ loses it own identity

  • Can lead to societal conflict

  • Female genital mutilation ex. (CM 39)

  • What about:

  • Arranged marriage? (CM 40 & CM 49)

  • Spit roasting cat? (CM 43)

  • Public autopsy? (CM 42)

  • Ban gender-based marae speaking rights? (CM 44-47)

  • Ban on playing with food? (CM 48)

  • Freeze-dried fetus earrings? (CM 41)

A Documents-Based Approach to Rights

  • Common overseas (eg USA, Canada, Europe)


  • Rights are specifically enumerated (not hard to find)


  • Rights are specifically enumerated -- don’t allow changes to follow changing technology (eg subliminal advertising) or changing culture (eg US on gay sex) or opinions (eg US on handguns)

  • If not entrenched, do they make a difference? If, for example, a majority of Parliament can change the document at any time, why not just skip the document and have Parliament vote on each occasion?

  • If entrenched, what gives the earlier framers the right to bind people in the future? (pigeon experiment)

  • Interpretation difficulties

NZ’s Documents

These include:

  • New Zealand Bill of Rights Act 1990

  • Human Rights Act 1993

  • International Covenant on Civil and Political Rights

The New Zealand Bill of Rights Act 1990

  • Only applies to state action

  • Does not supercede Parliament, or overturn legislation

  • Rights are not absolute. Restrictions which are prescribed by law and demonstrably justified in a free and democratic society are acceptable (s. 5)

  • Statutory interpretation must be consistent with the Bill, but the definition must be tenable. Quilter

  • Remedies include judicial review, actions for damages (Simpson, AKA Baigent’s case), and many others

  • Individuals can waive rights under the Bill Christchurch International Airport v Christchurch City Council

  • BORA does not give government a positive obligation to promote rights (eg Mendelssohn v A-G)

Moonen v FLBoR

  • Moonen: it is the obligation of the courts to announce that legislation violates the BORA even when that legislation remains valid

  • Relevant questions:

  • What is the scope of the relevant right or freedom?

  • Is there more than one tenable statutory interpretation? (If so, choose least restrictive.)

  • As interpreted, does the statute limit rights? To what extent?

  • Can that limit on rights be justified?

  • ID objective of legislation and assess its importance

  • ID means for achieving object: must be proportional, rational, not over-inclusive (least restrictive)

  • Balance the object with the limitation on rights

  • Overall, is the limit justified?

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