LAWPUBL 754 - Special Topic: Comparative Human Rights Law
|Dates||22-28 May 2019|
|Location||Room 340, 1-11 Short Street|
Paul Rishworth is a Professor of Law and also Senior Crown Counsel in the Constitutional and Human Rights team at Crown Law (Auckland). His research and teaching interests lie in constitutional law and human rights law. At Crown Law his practice involves civil cases and advice involving the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 as well as broader public law issues. He is a co-author of Rishworth, Huscroft, Optican and Mahoney, The New Zealand Bill of Rights, Oxford 2003.
Comparative Human Rights Law will examine how human rights issues are dealt with across a range of countries in the (broad) common law tradition – New Zealand, Australia, Canada, the United States, the United Kingdom, South Africa, and various states of the South Pacific. While the focus is on domestic law, this necessarily involves a consideration of international law (the European Convention on Human Rights and the International Covenant on Civil and Political Rights) given that in various ways, international human rights law has a bearing on domestic law in most of these countries.
We will be interested in questions about the structure of human rights protection, as well as in the substance of particular current controversies in the human rights space.
The structural issues will take us into these sorts of questions:
- How are human rights protected in the common law? How do we identify features of law that protect human rights? Is the label “human rights” an expression of a society’s deepest concerns?
- How are rights reflected in constitutions (when they are so reflected?) Does it make a difference whether constitutions are federal or unitary, written or unwritten?
- What is the link between human rights and language? Why are so many human rights cases about statutory interpretation? Why do some modern bills of rights make the interpretation of statutes their major concern?
- What are the differences between legal systems with a “higher law constitution” (that invalidate laws inconsistent with the constitution) and those with unwritten constitutions (where rights are still seen as fundamentally important and are expressed in documents in much the same way as in higher law constitutions)?
- What are the implications for judicial power of the different sorts of constitutions and modes of rights protection?
- When, how and why is international law relevant in rights cases?
- How do states reckon with analysing rights? Are rights always seen as being subject to “reasonable limits” that are demonstrably justified in a free and democratic society? Is the way that countries decide rights cases basically the same, but using different techniques?
- There is often talk of “dialogue” in rights cases between courts and legislatures. How does this idea get reflected in the law of the countries we are examining? Is the (coming) idea of a declaration of inconsistency in New Zealand (when a statute is inconsistent with the Bill of Rights) much different from a declaration of invalidity in Canada, or the striking down of a law in the United States?
- How do states decide who is bound by the obligation to respect human rights? Do bills of rights bind citizens, or only governments? Must the common law be consistent with human rights? Does that mean they apply to everybody? In controversial cases, whose vision of human rights is to prevail? Are human rights owed within families, within corporations? What does this mean, exactly?
- Have we reached a time when economic rights, and social rights such as housing and water supply, ought to be given the same status as civil rights? What is the position in other states, and why?
- Are rights always negative – a catalogue of what should not be done to people – or can they be positive (as a reasons why a state must act such that there is a breach if it omits to do so?)
- The first day and a half of the course will introduce all these questions, which will provide a framework for the next three and a half days in which the focus is on particular rights (and we will use these structural inquiries to understand more about what is going on in the cases.
The substantive human rights we will examine are these:
1. Liberty How do states protect the basic idea that persons are free and ought to have fundamental liberty protected? Why is there no right to liberty in the New Zealand Bill of Rights Act 1990, when there is in the United States and Canada and many other countries? Is liberty just about physical freedom or is it about living our lives as we choose? Within this we can consider the current controversies surrounding beginning and end of life (abortion law and euthanasia, and how states are reckoning with this).
2. Life and security Bills of rights tend to guarantee life and often security of the person. What does this mean in practice? What is the interaction with tort law? Can the same action (an assault) be a rights violation as well as a tort? When does this matter? Does New Zealand’s ACC system make us different in this respect, and lead us to fashion new Bill of Rights remedies? What do other countries do?
3. Freedom of expression In many countries there are growing issues over whether (and when) speech can be said to cause harm such that it is justifiable to suppress it, especially in the information age. Around the world there are cases arising on university campuses and in employment situations where consequences are attached to person’s chosen messages and ideas. We will look at the ideas of offence and harm in the context of laws for censorship and against “hate speech”. We will look also at the role of freedom of expression in schools over matters such as dress and appearance.
4. Freedom of religion How do the various states regard religion? Is it a special form of right, or is it embraced within freedom of expression and belief more generally? What is the “establishment of religion” that the US and Australia both disfavour in their constitutions, and is it the same as the “freedom of religion” that is found around many other constitutions? What can the state say and do in matters of religion, or of belief more generally? Is the state truly secular? Can there be national ideals that are officially embodied in state conduct and laws? Can there be prayers in schools, or can there be options for schools to have them if a community wishes? What is a community, and how are minority rights to be accommodated? What about indigenous spiritualty What about group religious freedom? How do states reckon with the rights of groups to maintain their distinct identity and beliefs, even if those are at odds with mainstream beliefs? Do persons have a right to practice their religion even when a law restricts that freedom? How do we decide whether it is unreasonable for a state to restrict religiously-based actions: eg beliefs about circumcision or blood transfusions, or dress?
5. Equality and discrimination How does each state identify and protect on the basis of individual characteristics? What sort of grounds are protected? Are they all seen as equally important? Can there be justified discrimination or is “discrimination” inherently invidious? What tests do states employ to decide what counts as discrimination? How do they reckon with minority rights to culture and religion, and language?
6. Social and economic rights How does each state deal with these in its legal system? Are they seen as constitutional rights or human rights, or as the product of ordinary law and policy. Are there civil and political rights that are being wielded to generate economic and social rights (eg anti-discrimination law can lead to broader inclusion in welfare benefits).
7. Remedies Throughout all the above there will be questions about what courts can and cannot do, and the relations between the branches of government.
The chief objective of the course is to provide students with an introduction to a range of contemporary issues that are relevant to human rights law. It aims to show how a study of the law of other broadly similar states generates insights into our own, with benefits for making legal arguments and conducting litigation as well as advocating for policy outcomes.
On completion of this course students should be able to:
• Appreciate the importance of the structure of human rights law and human rights controversies – that is, understanding the question to be asked and answered;
• Have a good understanding of the particular human rights controversies considered
• Recognise and understand the main principles of comparative law, and its benefits (and pitfalls).
• Understand the intersection of human rights law with broader constitutional and public law
• Identify and use the key legal and policy materials applied in the jurisdictions studied; and
• Comment critically on the law and policy relevant to human rights.
90% research essay of 12,500 words and 10% class participation and presentation.
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 8th August 12 noon.
Extensions will not be granted lightly (only on sickness and compassionate grounds) and must be requested formally through the Postgraduate Manager.
Each student will be asked to prepare a brief (10 minute) presentation based on an assigned case (as well, of course, as being free and encouraged to participate in class discussions throughout).
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 and;
• the ability to draw worthwhile conclusions.
Class participation will assessed over the whole 5 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.
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.
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 discussion is encouraged. 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.