Daniel Josephs

This case concerns the rights of prisoners to legal representation in prison disciplinary hearings. More broadly, Drew v Attorney-General is of great constitutional significance as an illustration of how the New Zealand Bill of Rights Act 1990 (NZBORA) can be used to effectively “strike down” or invalidate regulations that are inconsistent with it. In this context, the Court adopted an approach of “reading down” the statutory provision that empowered the creation of the regulations in order to construe it consistently with the NZBORA. (more…)

Helen Thompson

Same-sex adoption—much like same-sex marriage—is a topic that causes much greater controversy than other issues for reasons insufficient in this day and age. On both sides of the debate, individuals present highly passionate arguments to support their position, although some arguments may be slightly misguided. Yet, the real question is: why are we still having such debates in 2014? (more…)

Helen Thompson

The Immigration Amendment Act 2013 (the Amendment Act) is undoubtedly controversial. It provides for the detention of refugees who arrive as a mass group in New Zealand. This is an issue that has been quite problematic in other parts of the world, notably in Australia with the Tampa Crisis. The MV Tampa, a Norwegian cargo ship, tried to enter Australian waters while carrying over 400 Afghan refugees that it had rescued from a sinking ship. Australia denied the ship permission, but docked at Christmas Island as the captain was concerned about the condition of the refugees. The incident caused an international dispute regarding who should accept the refugees given Australia’s refusal.  Despite this, New Zealand has never had to confront the same issue. (more…)

Dino Bohinc

This case note endeavours to analyse the case of Battison v Melloy through a legal lens. It is necessary to do so, given the wide and arguably misinformed media coverage it received.

The catalyst to this paper was the sheer number of comments by members of the public that Lucan Battison was either: an ignorant child for refusing to comply with direction; a child who was so spoilt he thought he knew better; or, simply, just a bad school teen. The media coverage made this appear to be a “fight for human rights” and a challenge to authority. This was helped by the excessive repetition of Lucan’s submission that his plight was akin to that of Martin Luther King Jr. This is not mentioned one single time in Collins J’s judgment.

A further reason for this case note is to help the public better understand and comprehend the concept of judicial review. Judicial review is a mechanism to ensure that a figure in a position of public authority does not abuse his or her powers. Here, Collins J was not looking to uphold Lucan’s fight for justice—rather, he was concerned with the potential abuse of power by the principal, Mr Melloy. As part of this, the judicial review was concerned with the legality and reasonableness of the school rules, and whether they were ultimately lawful. (more…)

Dino Bohinc

Procedural history and issues arising

This was a successful appeal to the High Court pursuant to s 117 of the Immigration Act 1987 (“the Act”) against the decision of the Deportation Review Tribunal (“DRT”): Wolf v Minister of Immigration [2002] NZDRT 4.

The appeal to the DRT was against the Minister of Immigration’s decision to revoke the appellant’s residence permit pursuant to s 7(1)(a) and s 20(1)(b) of the Act. The DRT subsequently upheld the Minister’s decision.

The High Court appeal focused on the reasoning process adopted by the DRT’s majority. The appellant submitted that the DRT had failed to comply with unreasonableness/irrationality principles, stated in the well-known case of Associated Pictures Houses Ltd v Wednesbury Corporation [1948] 1 KB 233. (more…)

Helen Thompson

America has recently hit the headlines for using untested drugs of unknown origins in lethal injection executions. This has resulted in several botched executions. There has been great controversy over whether the use of these drugs amounts to cruel, inhumane or degrading treatment, or—potentially—torture. If it does, it would constitute a breach of the Eighth Amendment to the United States Constitution, which prevents the infliction of cruel and unusual punishment, as well the Convention Against Torture, to which America is a signatory party.  There are also issues surrounding the state’s right to keep secret the source of the drugs that they are using. Many states have passed laws declaring that they are permitted to restrain publication of this information. Prisoners have been trying to challenge the constitutionality of these laws, claiming that they have rights under the First Amendment to know what drugs will be used to kill them. (more…)

Sam Smith

In a significant decision, the Supreme Court refused public damages for breach of the New Zealand Bill of Rights Act 1990 (NZBORA) by the Judiciary. The decision was by a bare majority, highlighting the tensions involved in the case.

Background

Mr Chapman was convicted of sexual offending against a young boy and consequently sentenced to six years imprisonment. He appealed to the Court of Appeal. Legal aid was declined and the appeal was dismissed without an oral hearing. The Court did so using the ex parte appeal process; a common procedure in the late 1990’s among senior judges. The Privy Council, in R v Taito, found that the ex parte regime applied against Mr Chapman and others was unlawful and in breach of NZBORA. Victims of the ex parte regime were granted new appeals, including Mr Chapman. He was successful. His conviction was quashed and he was discharged under s 347 of the Crimes Act 1961 at a retrial.

Mr Chapman then took an action against the Attorney-General for public law damages for alleged breaches by the Judiciary of ss 25 and 27 of NZBORA. The proceeding was removed to the Court of Appeal, which held that public law compensation was available for judicial breaches of NZBORA and that the case should go to trial. The Attorney-General appealed to the Supreme Court and argued  that the rationale that underpinned personal judicial immunity from suit also justified the extension of that immunity to the Attorney-General for public law liability. (more…)

Sam Yoon

The question before the Court of Appeal in Simpson v Attorney-General (Baigent’s case) [1994] 3 NZLR 667 (CA) was: to what extent can the Crown be made liable when a Crown entity breaches an individual’s rights under the New Zealand Bill of Rights Act 1990 (NZBORA)?

Background

In 1985 the Justice and Law Reform Committee recommended to Parliament that NZBORA should not have the status of “supreme” law.[1] Accordingly, it was merely a matter of time before the courts would be confronted with the question of how the Crown would be disciplined in the event of a breach of NZBORA given that the Act has no remedial provisions. But could the courts overcome this statutory abyss to provide protection for individuals vis-à-vis the Crown?

At the time of Baigent’s case, developments in New Zealand’s human rights law were already occurring, as evidenced by decisions such as Ministry of Transport v Noort. These decisions transformed theory into practical outcomes. In particular, Baigent’s case provided the judiciary with a platform to fill the legislative gap created by the absence of an express remedy provision within NZBORA. (more…)

Helen Thompson

It is well established that people should be paid equally for performing the same job, irrespective of gender. We are all well aware of this, even if a pay disparity still exists in this country. But what transpires when workers in an industry, almost entirely occupied by women, are paid less solely because they are in a female-dominated industry?

That was the question for the Employment Court in the Service and Food Workers Union Nga Ringa Tota Inc v Terranova Homes and Care Ltd. The case was brought in the Employment Relations Authority in November 2012 but was removed to the Employment Court given the important questions of law involved (see Bartlett v Terranova Homes and Care Ltd (Wellington) [2012] NZERA 743)(more…)

Sam Jeffs

Introduction

It may come as a surprise to learn that the minimum wage is not the “minimum” at all, particularly if one has a disability. A Labour Inspector has jurisdiction to issue a “minimum wage exemption permit” that allows an individual with a disability to be paid less than the minimum wage. The latest data shows there are 897 exemption permits in force as at 11 February 2014.[1] Of those, 660 allow individuals to be paid less than $5 per hour. (more…)