The course focuses on selected issues in human rights law, and the ways in which they are debated and resolved across the common law world. It also looks at the law on human rights decided in the international tribunals (particularly the European Court of Human Rights and the Human Rights Committee under the International Covenant on Civil and Political Rights).
The focus is on common law countries – the United Kingdom, the United States, Canada, Australia, New Zealand, and Pacific states, as well as South Africa. The course will explore a series of modern controversies around:
A. Liberty – how far can the State go in reaching into areas of personal liberty such as reproductive choices (abortions, contraception), lifestyle choices (diet, travel, smoking and other “vices”), family choices (child-raising), sexual preferences and so on?We look at the way in which fundamental liberties are treated in the legal systems we are studying and whether and how they are protected by the New Zealand Bill of Rights Act 1990.
B. Fundamental freedoms – conscience, thought, expression and associationHere we look in particular at modern controversies over banning speech – such as hate speech or obscene speech. The rise of social media and the law’s response to this across the jurisdictions will be considered. Speech restrictions on university campuses and in employment (especially in the spare time of employees and on social media) are also considered.
C. Freedom of religion and beliefThe relation between religion and the state, or “establishment of religion”, and the individual free exercise of religious belief (or “freedom of religion”) are considered. When, if ever, can a person seek an exemption from the law of the land to facilitate their religious practice or belief? Particular attention is paid to the clash between religious belief and associated practice, on the one hand, with the demands of anti-discrimination law on the other. Issues such as these are arising increasingly across the common law world.
D. Equality and anti-discriminationWe look at the principles employed around the common law world to decide when and why there is unlawful discrimination, and when special treatment can be justified to promote equality. The interaction of these principles with the existence of indigenous peoples in many of the states will also be considered.
E. Social and economic rights and rising inequality
We look at the extent to which rights to certain standards of living can be found in modern human rights law. Are they rights of the same type as are found in bills of rights and can they be protected by courts? What of rights to survival threatened by climate change, especially say in the north of Canada or Alaska or the Pacific, or just generally?
F. Rights methodology
Woven through all the discussions of the cases and controversies are generic questions about the role of courts, of politicians and policies, and the interaction if statutory interpretation principles with the moral claims of human rights law. That is, in countries like New Zealand where the courts do not “strike down” legislation passed by Parliament, how much can still be attained by interpreting Parliament’s words in a rights-consistent manner?
SyllabusThe course is taught through class discussions and debates generated by key readings on each of the above topics. At all times we are interested in how the issues we discuss ought to be resolved under New Zealand law but with an eye to the insights generated by comparative law. Issues arising out of the current pandemic will receive attention throughout.