An opinion, presented by Rosa Laugesen* Submitted for the LLB (Honours) degree, Faculty of Law, Victoria University of Wellington, 2019 argues that the decisions of both the High Court and the Court of Appeal may both be faulty.
Article title-
DEPRIVING RIGHT-HOLDERS OF
FUNDAMENTAL RIGHTS AND
FREEDOMS TOO EASILY? LOW
VOLUME VEHICLE TECHNICAL
ASSOCIATION INC V BRETT AND THE
ISSUE OF WAIVER UNDER THE NEW
ZEALAND BILL OF RIGHTS ACT 1990
VI CONCLUSION
DM Paciocco observed, rightly, that “persons ought not to be deprived easily of fundamental
rights and freedoms”.156 This article has argued that whilst a decision to deprive oneself of one’s right
to freedom of expression should be recognised by the courts, this recognition should not be given
easily. Courts must ensure that the waiver reflects the right-holder’s free choice or otherwise s 3 bodies
will be allowed to abandon their constitutional commitments too easily.
In Brett, the Court of Appeal failed to give effect to this notion. This article has submitted that,
while it was right to find that Mr Brett could waive his right to freedom of expression, the Court’s s 5
approach failed to subject his waiver to proper scrutiny. If the Court had taken a different approach it
may not have concluded that the waiver was valid. Unfortunately, Mr Brett may in fact have been
deprived too easily of a fundamental right
Link- https://ojs.victoria.ac.nz/vuwlr/article/download/6519/5659/8952
None of this has any current relevance- offered only for interest
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