Removing the fruits of rights litigation

May 18th, 2013 | Posted by sambookman in Policy Developments - (2 Comments)

- Sam Bookman

A showdown between Parliament and the courts is rarely desirable, especially in a country that lacks a written constitution. Instead, our governmental balance of power has weighed heavily on the side of parliamentary supremacy. In the absence of written constitutional safeguards, it is incumbent on Parliament to exercise its power responsibly, having regard to constitutional conventions. One of the central conventions in the gentlemanly arrangement is the undertaking not to remove the fruits of litigation; Parliament should avoid directly overriding the courts. Yet in its latest budget and accompanying New Zealand Public Health and Disability Amendment Bill (No 2) (“the Bill”), that is precisely what Parliament has done.

Of course, this convention is not always followed. Robert Muldoon (in relation to hydropower dam development) and Helen Clark (in relation to Maori title) both notoriously ignored Court directions. Unlike those instances, it is not so much the brazenness of the present Bill that is of most concern. Rather, it is an insidious and cynical denial of rights fought hard for and won in the Court process, passed under urgency with almost no public scrutiny. Criticism and concern (such as Professor Andrew Geddis’s excellent critique) is well-justified.

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Case note: Hansen v R

May 13th, 2013 | Posted by sambookman in New Zealand - (0 Comments)

- Sam Jeffs

Background

Paul Hansen had the misfortune of being found with 375 grams of clipped cannabis and 1520 grams of other cannabis plant material at his home. Mr Hansen was by all accounts in a difficult position, as s 6(6) of the Misuse of Drugs Act 1975 (“the Act”) provided that anyone who possessed more than 28 grams of cannabis was “presumed until the contrary is proved” to supply that drug.[1] His misfortune only increased when he was convicted for being in possession of cannabis plant for the purpose of supply under s 6(1)(f) of the Act.

Mr Hansen appealed, contending that s 6(6) was inconsistent with the right to be presumed innocent until proven guilty enshrined in s 25(c) of the New Zealand Bill of Rights Act (BORA). The Court of Appeal, following their prior decision in R v Phillips [1991] 3 NZLR 175 (CA), held that s 6(6) is clear in applying a persuasive burden upon the accused. The accused must prove, on the balance of probabilities, that the drugs were not possessed for the purpose of supply. The appeal was dismissed and Mr Hansen was granted leave to apply to the Supreme Court. (more…)

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Insurers’ Obligations in the Red Zone: O’Loughlin v Tower Insurance Limited [2013] NZHC 670

May 6th, 2013 | Posted by sambookman in New Zealand - (0 Comments)

- Rachael Davidson

O’Loughlin v Tower Insurance Limited has been a highly anticipated decision for many Christchurch red zone residents and insurers alike.  The case dealt with a claim brought by the O’Loughlins against their insurer, Tower Insurance Limited (“Tower”), for the full rebuild or replacement value of their home damaged in the February and September earthquakes, rather than the estimated repair value as calculated by Tower.

Facts

Part of the Government’s response to the February and September earthquakes was to create zones (green, orange, red and white) within the Christchurch area based on severity and extent of land damage, as well as cost effectiveness and social impacts of land remediation.

Under s 53 of the Canterbury Earthquake Recovery Act 2011, the Chief Executive of the Canterbury Earthquake Recover Authority (CERA) had the power to acquire the property in the name of the Crown.  CERA also made two alternate offers to homeowners in the red zone: the first, to buy the property entirely for a set price; and the second to purchase just the land.

As a result of the earthquakes, the O’Loughlins’ property suffered from liquefaction, dropped approximately 620 millimetres and was designated part of the red zone.  The O’Loughlins opted to sell the land to the Crown and to pursue compensation for the damage to their home from Tower. (more…)

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New Horizons: The Rights of Older Persons

April 29th, 2013 | Posted by sambookman in Commentary - (0 Comments)

- David Taylor

The genesis of modern human rights is often traced to 1948 when, in response to the Second World War, the Universal Declaration of Human Rights was adopted.  Over 60 years later the modern human rights doctrine has not only consolidated and expanded upon those initial foundations, but continues to evolve in new and exciting directions.  We would like to welcome you to New Horizons, a series of posts in which we explore these emergent conversations within the discourse of rights.  Beginning this week with the rights of older persons in New Zealand, this series seeks to identify new lines of inquiry within rights and to provide an introduction to both the context and location of the rights in question. (more…)

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Extra-territoriality, the Right to Protest and the Law of the Sea: New Zealand Police v Teddy [2013] NZHC 432

April 25th, 2013 | Posted by sambookman in New Zealand - (0 Comments)

- Caroline Fergusson

Acts of protest at sea can attract different legal repercussions to those on land. This is due to the international maritime law regime which applies to the sea outside our 12 mile territorial limit. The interaction of domestic law and the international law of the sea came before the Courts earlier this year in the case of New Zealand Police v Teddy. Although not a case directly centred on the right to protest, as an example of a protest action in extra-territorial waters this case raises the possibility of potential areas where the application of human rights law will face challenges. Subsequent government actions have highlighted these possibilities. A further human rights connotation of this decision is the authorisation of police actions beyond our territorial sea. (more…)

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Commerce Commission v Air New Zealand [2011] NZCA 64

April 25th, 2013 | Posted by sambookman in New Zealand - (0 Comments)

- Edward Willis

Introduction

 Commerce Commission v Air New Zealand (Air New Zealand)is notable for those interested in promotion of fundamental rights for a number of reasons. The case involved a challenge by way of judicial review to the imposition of non-disclosure orders by the Commerce Commission pursuant to s 100 of the Commerce Act 1986. In allowing the Commission’s appeal the Court of Appeal was required to address aspects of freedom of expression and the right to justice as affirmed in the New Zealand Bill of Rights Act 1990 ss 14 and 27 (NZBORA).  This note briefly summarises the background to the case before addressing the aspects that concern NZBORA. The Court’s approach in respect of the right to justice is endorsed as appropriate, but it is contended that the methodology employed in respect of the Court’s consideration of freedom of expression raises important questions over the robustness of rights protection in New Zealand.

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The Court of Appeal considers claims for damages in judicial review proceedings: Attorney-General v Dotcom [2013] NZCA 43 at [27]

April 23rd, 2013 | Posted by sambookman in New Zealand - (0 Comments)

- Jonathan Orpin

In Attorney-General v Dotcom the Court of Appeal was required to deal with what it described as an “issue of principle”: whether a civil action ought to be allowed to be joined to a judicial review claim.

Background

Combining an application for judicial review with an ordinary civil action for damages can give rise to procedural difficulties. Judicial review is supposed to be a “simple, untechnical and prompt procedure”.[1] For this reason, procedurally applications for review have a “special character”.[2] For instance, evidence is usually adduced by affidavit[3] and cross-examination is not permitted as of right but only with the leave of the court.[4] Similarly, discovery is not required as a matter of course (although decision-makers have a duty to disclose relevant material to the court).[5]

Such procedural rules are usually unsuited to determine ordinary civil actions for damages. Accordingly, if an ordinary civil action is heard with an application for judicial review the proceeding may need to proceed in the usual manner of a full civil trial. That can result in the resolution of the application for judicial review being delayed which may adversely affect not just the parties to the litigation but also, given the public law nature of most applications for review, third parties. For this reason there has been reluctance on the part of the courts to hear claims for damages in judicial review proceedings. (more…)

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Case note: Barrie v R

April 22nd, 2013 | Posted by sambookman in New Zealand - (0 Comments)

- Zyanya Hill

Barrie v R [2012] NZCA 485 was an appeal against conviction to the Court of Appeal on the basis that, by failing to facilitate the consultation of a lawyer in Australia, the police had infringed upon Mr Barrie’s rights. This case considered the definition of ”lawyer” under s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA) and found that the definition did not extend to a foreign lawyer. The case upholds the principle that the right to counsel of choice is not absolute and is subject to reasonable and practical limitations, particularly in the drink driving context where time is of the essence. (more…)

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Same-sex adoption and discrimination

April 19th, 2013 | Posted by sambookman in Policy Developments - (0 Comments)

- Susan O’Connor

The rights of lesbian, gay, bisexual and transgender New Zealanders have been the centre of considerable attention in recent months. With marriage equality passed into law on 17 April 2013, 77 votes to 44, the Marriage (Definition of Marriage) Amendment Bill 2012 (the Bill) looks set to become law in the near future. This is not to say that the Bill has not been met with significant opposition, and even outrage, since it was introduced. Although the primary focus of the Bill can be found in cl 5, redefining marriage as “the union of 2 people, regardless of their sex, sexual orientation, or gender identity”, it will, as a consequence, amend other pieces of legislation. Among these is the Adoption Act 1955. Read a selection of public submissions on the Bill and it quickly becomes clear many opponents are concerned that the redefinition of ‘marriage’ will allow same-sex couples to adopt jointly. (more…)

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Limiting the Right to Protest within the Exclusive Economic Zone

April 15th, 2013 | Posted by sambookman in Policy Developments - (0 Comments)

- Tracey Turner

Once upon a time, the New Zealand Government played a key role in protesting things it thought inappropriate. In the 1970s, this extended to sending two navy frigates into the middle of a nuclear test area to express concerns against French nuclear testing in the Pacific. Those days are a distant memory, with the Minister of Resources and Energy, Simon Bridges, recently introducing a Supplementary Order Paper (SOP) to amend the Crown Minerals (Permitting and Crown Land) Bill 2013. The amendment will create two new offences and corresponding penalties for people protesting against oil and gas exploration in the Exclusive Economic Zone (EEZ).

The proposals are contentious, with the likes of Sir Geoffrey Palmer, Peter Williams QC and Dame Anne Salmond issuing a joint statement that describes the amendment as “a sledgehammer designed to attack peaceful protest”. Although the Government is defending the amendment – citing both economic and safety concerns – the proposals have been heavily criticised as inconsistent with international law. The proposed offences create disproportionate penalties that impinge directly upon an individual’s right to freedom of expression and freedom of peaceful assembly, both affirmed under the New Zealand Bill of Rights Act 1990 ss 14 and 16 (NZBORA).

This post briefly addresses some of the procedural and substantive concerns raised by the proposals.

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