Browsing by Author "Avery, Joelle"

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The Privilege of Driving: Alberta v Hutterian Brethren of Wilson Colony and the Application of the Oakes Test
(Te Herenga Waka—Victoria University of Wellington, 2010) Avery, Joelle
This paper examines the Canadian Supreme Court case of Alberta v Hutterian Brethren of Wilson Colony (Alberta v Hutterian). In this context, the application of the test established in R v Oakes (Oakes) and the place of judicial review with particular regard to freedom of religion cases are analysed. The application by this Court of the Oakes test demonstrates the inherent uncertainty and problematic subjectiveness of the test. The circumstances are analysed in a New Zealand context to outline the options available to the New Zealand courts if faced with a similar situation. The paper concludes that the majority in Alberta v Hutterian applied the Oakes test incorrectly. Further, not withstanding the fact that the legality of judicial review is questionable in such cases, the Oakes test requires urgent clarification, or another approach to limiting rights needs to be adapted by the courts. Such a change would be a welcome development in the New Zealand context.
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This Land was Made for You and Me: The Right to Return and Property Restitution Rights of Internally Displaced Persons
(Te Herenga Waka—Victoria University of Wellington, 2012) Avery, Joelle
This paper examines the right to return and the right to property restitution for internally displaced persons in post-conflict settings. It asks whether these rights are sufficiently protected for IDPs in the current international forum, and aims to answer the question of how the right to return and property restitution for IDPs can be secured more effectively in post-conflict situations. These rights are analysed within the broader context of their ability to help reshape and redefine post-conflict nations. The right to return and the right to property restitution are generally assessed, before being investigated through international and regional laws, and then comparatively critiqued in terms of the UN Principles relating to IDPs. Bosnia and Herzegovina (specifically the Dayton Agreement) is used as an example to further the conversation of the effectiveness and underlying problems of the UN Principles as soft-law international norms in regards to these rights. Possible amendments to the UN Principles are discussed, with the paper concluding that these rights play a vital role in stabilising and normalising states after conflicts, and that the current state of the law for these rights is not sufficiently effective for IDPs and their post-conflict states. It argues that these rights are not yet firmly grounded in international law and advocates for the right to return and property restitution rights for IDPs to be ratified in a systematic international theoretical and legal framework.