LAWPUBL 751 - Special Topic: Litigating Human Rights - Law and Practice in International Perspective

Lecturer biography

Paul Rishworth is a Senior Crown Counsel in the Constitutional and Human Rights team at Crown Law (since 2015) and a Professor of Law at The University of Auckland (since 1987). His research and teaching interests have been in the field of Public Law, Comparative Constitutional Studies, and Human Rights. He is a co-author of Rishworth, Huscroft, Optican and Mahoney, The New Zealand Bill of Rights, Oxford, 2003. He has taught at the University of Virginia and the College of William and Mary, and Western University in Canada.

Course outline

The aim of the course is a survey of the use of litigation in the identification and resolution of selected human rights controversies. The course revolves around the set of civil and political rights in the New Zealand Bill of Rights, aiming to put these rights (and cases arising from them) into international context by examining how similar controversies are resolved in other common law countries (as well as by the European Court of Human Rights and Human Rights Committee under the ICCPR). The course aims to emphasise practical concerns in human rights litigation (issues of assembly of evidence, standing, remedies, intervenors) as well as the substance of the rights and freedoms themselves.

Syllabus

The course will deal with these rights, in particular:

  • Rights to life, liberty and security of the person (ss 8 to 11)
  • The fundamental freedoms: thought, conscience, religion and belief; expression, assembly and association (ss 13 to 18)
  • Equality and discrimination (s 19)
  • Minority and cultural rights (s 20)
  • Rights to administrative and substantive justice (s 27)

The classes will include:

  • Discussions on novel and merging issues such as the interaction of human rights law with current debates over assisted suicide and law reform; the criminalisation of marijuana including for medical purposes; new issues in discrimination law such as gender identity; the reach of human rights law into private associations and private life
  • Consideration of foundational issues in rights cases, such as the relationship between seeking “rights-consistent” interpretation of statutes and common law doctrine (on the one hand) and constitutional invalidity (on the other)
  • Evaluating rights in context - proportionality and “reasonableness” in rights adjudication
  • Reflections on the role of courts and legislatures, and non-state agencies, in human rights matters

Objectives

The chief objective of the course is to explore:

  • How the Bill of Rights works, and the proper approach to applying it in policy and litigation work
  • The content of the selected rights and freedoms
  • The relationship of the Bill of Rights in New Zealand to comparable instruments elsewhere (and thus the use that may be made of overseas examples and precedents)

Learning outcomes

On completion of this course students should be able to:

  • Understand the way in which the Bill of Rights is designed to operate and its place in the New Zealand constitution
  • Understand the main issues concerning the substance of the selected rights and freedoms
  • Understand the way human rights operate in the private sphere
  • Have a basic understanding of comparable issues in the selected comparator countries
  • Appreciate the set of special issues that arise when cases are being prepared for argument in courts

Assessment

  • 90% research essay of 12,500 words
  • 10% class participation and presentation

Essay

Each student is required to submit a research essay of no more than 12,500 words including an abstract/synopsis of 500 words. The essay is to be original work, relying on secondary and primary sources. It MUST be the work of the enrolled student. Another person, other than the enrolled student, MUST NOT write the essay nor do the research on behalf of the enrolled student. Plagiarism is not permitted and in that regard each student should read the University’s plagiarism policy and adhere to it. All students will be expected to sign a plagiarism declaration when submitting their essays. Students must also use proper legal citations and include a reading list at the end of their type-written essay. The essay should be comprised of properly crafted English sentences (note form is unacceptable). The use of sub-headings is encouraged and footnotes rather than Harvard style in-text referencing are to be used.

Descriptive essays are not encouraged. Instead students are expected to engage with relevant legal issues by: critiquing the law; developing proposals for reform; examining the operation of law and policy in practice; and/or providing a conceptual analysis of the law, for example.

Essays must be submitted to the Faculty of Law, by 12 noon 20 September 2018.

Extensions will not be granted lightly (only on sickness and compassionate grounds) and must be requested formally through the Postgraduate Manager.

Class participation and presentation

Each student will be asked to prepare a brief (15 minute) answer to one of the focus questions in the Learning Guide and present this to the rest of the class. In addition, each student is expected to make individual contributions to seminar discussions throughout the course. Students will be individually assessed on the quality of their contributions.

Criteria and marking

Students will be individually assessed on the quality of their contributions with reference to the following criteria:

  • The extent to which the student has identified the important and relevant issues
  • The clarity of argument
  • The depth and thoroughness of understanding of the seminar material
  • The strength and clarity of the arguments presented
  • The overall lucidity of the contribution
  • The extent to which issues are placed in their wider context
  • The extent to which the student has displayed a grasp of the doctrinal and normative issues
  • The analysis and synthesis of material
  • The ability to draw worthwhile conclusions

Class participation will assessed over the whole five days of the course. Quality rather than quantity will be assessed but clearly if a student is not present for all the classes, it will be impossible to achieve the maximum marks possible even if a student’s contributions are brilliant when he/she does speak. Students are reminded that the full range of marks is available to the lecturer in assessing class participation. Please be assured that the lecturer is very aware that mistakes are part of learning. Accordingly, ‘getting the law right’ is not the key focus of the class participation component of assessment. If students knew all the law from the outset, there would be little point in them enrolling in the course. Rather, class participation is included to extend students and to assess students’ imaginative understanding of, and engagement with, the materials under discussion. It is not meant to be threatening.

Reading materials

Reading materials will be contained in the Casebook/Study Guide. Students may also be asked to access additional materials via the internet or in the library.

Teaching method

The course will be taught over five days commencing on a Wednesday and concluding at the end of the following Tuesday. Classes will be interactive and hopefully, very friendly. It will, however, be necessary for students to do the pre-reading for the course so that they get the most out of the materials under discussion.

Classes will commence at 9am and run till 4.30pm. Morning tea will be around 10.30am (approx. 20 minutes). We will also have a short break in the afternoon.

Course details

Semester: One
Type: Intensive
Points: 30
Dates: 4-10 July 2018
Time: 9am-4.30pm
Venue: Building 810, Room 3.40
1-11 Short Street
Assessment due date: 12 noon on 20 September 2018

Contact details

Law Student Centre
Level 2, 1-11 Short Street

Email: postgradlaw@auckland.ac.nz