1 COML203 Notes PDF

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Summary

W E E K 1 : W H A T I S L A W?Law – a collection of enforceable rules applicable to the behaviour of persons and institutions of an organised community (such as a nation) for the achieving of peace and resolution of disputes Enforceable rules - Law can be enforced by the government and legal conseq...

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COML203 Notes WEEK 1 : WHAT IS LAW? Law – a collection of enforceable rules applicable to the behaviour of persons and institutions of an organised community (such as a nation) for the achieving of peace and resolution of disputes 

Enforceable rules - Law can be enforced by the government and legal consequences can arise if a person does not follow the law. - Many organisations have rules or laws that are not enforceable – these rules or laws do not have the formal validity of law. Laws have formal validity only if it is enacted by the Parliament (Acts or Statutes) or under the authority of Parliament (Delegated Legislation, i.e. regulations, bylaws). - NZ is a common law country – courts have powers to make law in areas where these is no statute law (e.g. contract law and tort law)

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Persons & institutions - All persons & institutions (including corporate persons or a company) are subject to the law. Even though a company has a separate legal personality from the people who make it up – they are separate at law but can be called persons.

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Organised community - NZ’s Parliament can only make laws for NZ.

How to distinguish ‘law’ from other rules or laws? 

The difference between the law and the rules of a club is the idea of enforcement and how you can have legal consequences arising if you break the law.

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COML203 Notes WEEK 1 : CLASSIFICATION OF LAWS 1. Procedural v Substantive 2. International v Domestic 3. Public Law v Private Law - Public law – concerned with matters that affect the State as a community – i.e. criminal law, constitutional law Private law – concerned with matters that affect the rights and duties of individual among themselves – i.e. contracts, torts and property law - However some areas of law do not fall neatly into a single category as they contain aspects of both – i.e. insolvency law, company law 4. Criminal Law v Civil Law Criminal Law

Civil Case

Wrongs against society

Wrongs against individuals – i.e. deals with disputes between private parties

Derived from legislation

Derived from common law, equity, legislation

The state prosecutes.

An individual sues or brings proceedings (if a breach in the civil area of law occurs).

The proceedings are referred to as a trial or as a prosecution.

The proceedings are referred to as an action.

The person who brings the actions is called the plaintiff (or applicant). They have the burden of The person prosecutes the person is the state proof – this means they have to provide a proof to (the prosecution or the Crown) or the police. the balance of probabilities that the other person is liable. In both types of proceedings, the person against against whom the proceedings are brought is known as the defendant. Burden of proof: beyond reasonable doubt

Burden of proof: balance of probabilities

Requirements:  Actus rea. (physical action)  Mens rea. (mental element) – action must have an intent If the prosecution is successful, the defendant is said to be found guilty.

If the plaintiff ’s action is successful, the defendant is said to be liable. If the defendant is held liable the plaintiff is entitled to monetary compensation for the loss or injury in the form of: damages, injunction, or a

If the defendant is found guilty, the judge will decree for specific performance. pass sentence in order to punish the defendant by means of imprisonment or fine or other The judge may compel the defendant to cease the non-custodial sentence. behaviour of which complaint is made by means of an injunction or compel performance of a contractual obligation by a decree for specific performance.

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COML203 Notes WEEK 1 : THE NEW Z EALAND

CONSTITUTION

Constitution •

The constitution is the rules that set out how a country’s government can use its power. It establishes the basic or fundamental principles on which government is based, together with the functions, powers and limits of different parts of government and the rights of citizens. The constitution answers three questions: - By whom are we to be governed? - How is the power of government to be exercised? - What is the relationship between the state and the individual?

Features of NZ Constitutional Structure 1. NZ have an ‘unwritten constitution’ – which means its constitution is made up of not just one but many documents which can include sources such as: -

NZ Statutes – Constitution Act 1986, NZ BORA 1990, Electoral Act 1993 UK Statutes – Magna Carta 1297, Bill of Rights 1688, Habeas Corpus Act 1679 Judicial decisions Treaty of Waitangi

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‘Rule of Law’ – the meaning is debated and difficult to pin down; but things that can be meant by ‘Rule of Law’ includes a series of principles that establish the standard, ideal or just relationship between the citizens and the state principles. This principle forms a core part of NZ’s constitution. 

The laws are clear as well as freely and easily accessible to all. Citizens and entities know what the laws are and have free access to documents containing the law (online or by other means).

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All citizens and entities are equal before the law. No person or entity has immunity from prosecutions.

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Proceedings before the court are open to all with some exceptions (such as family and youth courts because of privacy and sensitivity issues) to ensure that it is fair. This ‘open justice’ concept keeps the system fair as the court decisions are public – everyone can see justice is being served on both parties. Media are generally allowed in court proceedings – so even if the public is unable to go, they can still see that justice is done.

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The judiciary is independent, unbiased and free from political influence.

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The power of the state must have a legitimate foundation. It cannot be exercised arbitrarily or capriciously.

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COML203 Notes WEEK 1 : THE NEW Z EALAND -

CONSTITUTION

Constitutional Conventions are unwritten rules that are (usually) strictly adhered to:    

Sub judice (under judgement) – the Legislature and Executive should not make negative comments about court proceedings. If Executive disagrees with court decision, the proper course of action is an appeal. Parliamentary privilege – Judicial branch should not comment on proceedings in Parliament Ministerial responsibility Collective cabinet responsibility

2. NZ constitution is based on the Westminster system by way of: -

It is a constitutional monarchy, similar to UK constitution. This means the Queen, as head of state, is the source of legal authority in NZ, but that she and her representative, the Governor General, act on the advise of the democratically elected government (i.e. Prime Minister, head of government).

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The head of government (usually called the Prime Minister) who is appointed by the head of state, but who, by convention, must have the support of the majority of the Members of Parliament.

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Legislature is democratically elected. It has a unicameral legislature system. Parliament only consists of one house, the House of Representatives, as opposed to the Westminster system which is bicameral. Comparison between NZ and elsewhere New Zealand

Australia

Canada

United States of America (US)

Constitution Act of 1986

Commonwealth of AU Constitution Act (1900)

Constitution Act (1982)

Constitution of the USA

Charter of Rights & Freedoms (1982)

Bill of Rights

Constitutional Monarchy Unicameral House of Reps

Constitutional Republic

Federation Bicameral Senate and House of Reps

Senate and House of Commons

Senate and House of Reps

(Federal) High Court of Australia

(Federal) Supreme Court of Canada

Supreme Court of the USA

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COML203 Notes WEEK 1 : THE NEW Z EALAND

CONSTITUTION

3. NZ constitution is based on the theory of separation of powers. It divides NZ government into 3 branches, each with separate powers and independent responsibilities. The basic idea is that there should be a system of checks and balances to ensure no element of government became too powerful. This theory can be used as a lens to consider how each area operates a check or balance on the operation of the other two. 

The legislative branch (Parliament) is carried out in Parliament and where all the MPs sit. It is responsible for making the laws – Statutes or Acts. It is unicameral with only one house, the House of Representatives, which is made up of elected representatives and the Governor-General. Parliament has no authority to execute or administer laws and has no powers of enforcement. They make new laws and update old ones by carefully looking at and talking about bills – which become laws when they’re passed. They examine and approve the government’s taxes and spending. They check the actions of the Executive.

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The executive branch (Government/Crown) administers government law and policy. It is made up of government department and headed by the ministers of the Crown. It is overseen by cabinet members – which includes the Prime Minister and Ministers. The executive council acts as a law-making and regulation body. It runs the country and makes day-to-day decisions on how and what NZ should spend its money on. It brings proposed laws to parliament, and decides policies which get put into practice by government departments.

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The judiciary branch (courts) interprets the law. Its courts has a hierarchy – Supreme Court, Court of Appeal, High Court and District Court. It develops common law through judicial decision making and is concerned with the settlement of disputes. The judiciary does not have the right to strike down Acts. The judiciary has no powers other than those dependent upon the citizens (or Executive) bringing proceedings. A member of the judiciary may not be removed from office except by a >50% resolution of Parliament for failure to exhibit good behaviour pursuant Constitution Act.

The operation of the doctrine of the separation of powers can be seen in its most developed form in the Constitution of the U.S. Unlike England & NZ, the American Constitution was deliberately created. The U.S. has a federal system of government. The legislature controls the levying of taxes and the allocation of the funds raised. The Supreme Court of the U.S. has the power to declare legislation unconstitutional. In NZ, there is no separation between the Executive and the Legislature nor do many of the checks and balances exist. There are limited checks on the legislature in NZ. The Judiciary cannot check the legislature. The Judiciary, through the courts, can & does exercise a degree of control over the actions of the Executive through Judicial Review.

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COML203 Notes WEEK 1 : THE NEW Z EALAND

CONSTITUTION

4. Although the theory of separation of powers can be identified in NZ, there are significant areas where NZ does not follow the theory: 

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Parliamentary Supremacy – ‘Parliament is supreme.’ (supremacy = full right & power) -

Under parliamentary supremacy, the legislative branch (Parliament) has absolute sovereignty and is supreme to all other government branches including the executive and judiciary.

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Parliament is the supreme law maker in NZ and has unlimited law making powers. They can make laws concerning anything.

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A valid act of Parliament cannot be questioned by the court. The courts cannot strike down Parliament’s laws and have no power to overrule legislation as unconstitutional. They can only interpret the law as laid down by the Parliament.

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No Parliament can bind a future Parliament as each Parliament is supreme. Each Parliament can amend, repeal, revoke legislation passed by a previous Parliament. It cannot pass a law that cannot be changed or reversed by a future Parliament.

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NZ Parliament is unicameral as opposed to Australia and the U.S. NZ does not have an entrenched Bill of Rights and very little legislation is entrenched

Independent but subordinate judiciary -

Judiciary is independent of political influence (i.e. Parliament); but Parliament is able to pass legislation that overturns decisions of judges. Conventionally, judiciary is immune to political criticism. Judges are independent from the other branches of Government and from each other. Judges must be free to determine each case according to the law, based on the evidence presented in court. This means that judges must be free from influence from every person including, but not limited to, the Governor-General, Members of Parliament (including Ministers) and Government officials. The Judiciary cannot interfere with decisions of Parliament (the Legislature), such as the decision to pass a law. However, the Judiciary can review the actions of the executive to see whether they acted within the powers given to them by legislation. This is called judicial review.

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Power of the Executive -

Executive is theoretically (not practically) separate from and subordinate to the legislative branch. However in NZ, executive have too much power – it practically has control of the legislature as members of the executive are also members of the legislature (i.e. Prime Minister, cabinet members).

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COML203 Notes WEEK 1 : THE NEW Z EALAND -

CONSTITUTION

Influence of MMP voting system – Electoral Act 1993 NZ uses a Mixed Member Proportional (MMP) voting system which makes it unlikely that any one political party (e.g. National, Labour, Greens) will win a majority of the seats in the House. The party with the most votes usually needs to form a coalition or agreement with another party or parties. First Past the Post (FPP) electoral system (FPP) is one where the candidate who get the most votes in a particular electorate wins a seat in the legislature (Parliament). This system was used until 1996 in NZ. This system divides a country into electorate. It also gives strong sides of Government – if party A comes second in every vote, they have no representation in Parliament – if party A wins 51% of seats, they can make any law they want.

Why is the constitution important for business? The government have the power to radically affect the commercial environment – the environment within which a business operates. It establishes policies that greatly influences the competitiveness and profitability of businesses if these policies are changed. Some government policies that affect businesses include: 

Taxation - An increase in corporate taxes will increase business costs and decrease profits. Therefore, a business may pass some of the tax to its consumers; however, this will still affect the profits. - A high tax rate on imported goods may encourage local production of the same goods. On the other hand, a high tax rate for raw materials hampers domestic production.

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Interest rates – the cost of borrowing - Higher interest rates lead to decreased consumer spending while lower interest rates attract investment as businesses increase production.

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Legal changes - Changes in minimum wage - Trade regulations - Requirements for permits/licences for businesses to be able to operate – i.e. periodic health inspections for restaurants - Compliance costs

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COML203 Notes WEEK 2 : STATUTORY INTERPRETATION Principal Sources of Law 

Statute Law – is a law passed by Parliament in the form of an Act. The language or wording used in a statute are expressed broadly or in general terms to cover not only specific cases, but also future cases.

The Bill becoming an Act does not mean that it has been enforced: An Act passed since 1 January 2000 has a section that states when it comes into force (commencement) – usually in section 2. Acts passed before this date may contain a specific commencement section – usually as section 1(2). Act can be brought into force: - On a specific date - On (or the day after) the date on the which it receives assent (Royal assent) - On a date to be appointed by the Governor-General by Order in Council (in which case the date will be published in a commencement order - After a specified period (i.e. one month after assent) - Sometimes different sections of an Act come into force at different times - The date of assent appears on the Act’s content page

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Delegated Legislation – are laws made under an authority or conferred by Parliament – e.g. regulations and by-laws. Legislation are passed by people who Parliament has given the ability or power to do so such as territorial authorities or ministers.

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Common Law (Case Law) – is a law made by judges from cases that they are dealing and unlike the statute law, is applied for one particular case. They are the judicial decisions from a NZ court.

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COML203 Notes WEEK 2 : STATUTORY INTERPRETATION Statutory Interpretation (the interpretation of legislation) 

Statutory interpretation covers both Acts of Parliament (statutes) and delegated legislation. “It is one thing for Parliament and delegated lawmakers to enact legislation and quite another for others to read and interpret it. Ascertaining what a legislative provision means in a particular context is what [interpretation of legislation] is all about.”

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Why do words require interpretation? The language and wordings used in a Statute is left deliberately vague and wide (i.e. general terms are used instead of specific words – e.g. motor vehicle instead of car) so that it can cover a wide range of situations and the courts can apply it to different specific cases. This is also to cover situations from the future that may arise, especially because of the rapid change in technology. -

Words can have different meanings in different situations. Besides words, signs and art works also require interpretation. It is impossible for the drafters (of the statute) to anticipate all possible fact situations and set down rules for each. Sometime drafters take a wide approach and at other times a narrow one. Narrow Drafting   

More certainty More loopholes Obsolete faster

Wide Drafting   

Uncertainty Courts have more latitude Catches more situations

Problems: -

It may be unclear exactly what is included within a word used in a section. E.g. – What is meant by the word ‘CAR’? Does it include a toy car, a truck or a motor cycles?

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Words may be ambiguous (unclear) – a word can have more than one interpretation or meaning: ordinary meaning, technical meaning, etc.

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Judges have to interpret legislation where circumstances have changed since the Act was passed – e.g. new technologies.

Judge’s Role: Two Stage Test 1. Establish/decide the meaning of words or phrase in section in question – Once the word has been interpreted, the judge can decide whether the defendant has breached the law. If the interpretation is unjustified, then it would be appealed. 2. Apply section to the facts of the case before court.

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COML203 Notes WEEK 2 : STATUTORY INTERPRETATION Rules For Guidance Judges use rules for guidance in stage 1 (pg. 83): 1. Common Law Rules – are gen...