LAWS 121 - Lecture notes All PDF

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LAWS 1215/3/19- AnnabelIntro class● Intro to law ● Legal profession ● Legal history ● Te Tiriti o Waitangi ● New Zealand constitutional law ● Law reform issue- Paid Parental leave ● Jurisprudence ● Dispute resolution ● Case study- climate changeResources on blackboardAssessments ● Test - Closed book...

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LAWS 121 5/3/19- Annabel Intro class ● ● ● ● ● ● ● ● ●

Intro to law Legal profession Legal history Te Tiriti o Waitangi New Zealand constitutional law Law reform issue- Paid Parental leave Jurisprudence Dispute resolution Case study- climate change

Resources on blackboard Assessments ● Test - Closed book - 10:00-11:05 am, Saturday 6th of April - 25% of final grade ● Essay - Due tuesday 7th of May, 12:00 noon - 15% of final grade ● Exam - Closed book - During 2 week mid-term exam period - 60% of final grade To pass ● Complete essay ● Attend at least 7 tutorials ● Ensure your name is accurately recorded on seating chart throughout the year 6/3/19- Annabel

The nature of law Thinking critically about the law and it’s context The pervasiveness of law ● People tend to think that the law only affects us in very particular aspects (ie crimes), however it is around us in almost every aspect of our lives ● Laws surround us in our everyday life, affects our everyday conduct ● An ever-present institution

The functions of law Diverse functions of law ● Social moral - Prevention of harm - Expressing our values ● Administrative and regulatory - Facilitation of interactions - Structuring and constraining government - Protecting our rights - Prevents and resolves disputes Your perspective on your function of law may change based on your own views and experiences. ● Eg, perspectives on the legal drinking age may differ between a room of 18 year olds and 65 year olds ● Eg, perspectives on pension may differ between people who have worked longer/harder than others ● Eg, perspectives on abortion may differ between gender, upbringing, experience, age ● Eg, minimum law wage, perspectives will differ between employer and employee ● Eg, paid parental leave, parents will want longer paid leave but employer will not want it to be as long

The concept of law ● A bundle of rules - Prohibitory, “Thou shall not”

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Mandatory, “Thou must”. ❏ Eg, taxes, census, registrations ❏ Our legal system wants to impose as few rules and duties as possible (western democracy) Regulatory, “Thou can, but..” ❏ Eg, building costs, driving laws Permissive, “Thou may” ❏ Eg, company law lets companies become a person in the eyes of the law, natural features have been given personhood in order to govern them and protect them

● A system of rules - Primary and secondary rules (HLA Hart) ❏ primary= rules regulating our conduct ❏ secondary= rules regulating the identification, application and change of primary rules - Officials and officers ❏ Judges ❏ MPs ❏ Police ❏ Government - Organisations ❏ Ministry of education ❏ Courts

● Other systems of control - Morality ❏ Will control how we act due to beliefs of right and wrong ❏ Not all morals are law ❏ Everyone has morals ❏ Influenced by Christian values ❏ Enforced by our social group, friends family and society - Custom ❏ Somethings just aren’t done, unwritten rules ❏ Will differ throughout societies and places - Other normative systems- often voluntary ❏ Choose to have these, often enforced by your job ❏ Religions

8/3/19- Annabel (everything from now on is assessed) The legal profession: Ethics Outline - Why be a lawyer? - The roles of lawyers - Law as a profession - Lawyer’s duties - Role- differentiation: law and morality What is the general perception of lawyers and the profession of law? ● Generally negative ● Greedy ● Manuliptive ● Hard Working ● Help get guilty people out of jail ● Critical ● Someone to turn to when you’re in legal trouble ● Source of specialised knowledge ● Passionate ● Argumentative

Why be a lawyer? - Greed? - Power? - Altruism? Help people - Nature of the work? Do something that feels like you’re making a difference - Status? - Career? - Matches your skill set? Why are you personally taking a law degree? I want to use my place of privilege to help those who were not as lucky as myself.

The role of lawyers -

Important part of the legal system, contact with everyday people This course covers: ● Different parts of government

Only 35% of lawyers actually appear in court ● Officers of the court ❏ Argue clients case ❏ Assist the court to understand the law ❏ Ultimate responsibility is to the court- not your client ● Advocates ❏ Process guide + written and legal argument ❏ Access to justice ❏ Dispute settlement, needs to try to settle the dispute before it comes to court ❏ Advice on legal rights, helps the client to understand ● Legal advisers ❏ Giving advice- what tax to pay, how to write a will, how to start a company ❏ Access to legal rights ● Public servants ❏ Lawyers in government ❏ Lawyers in public service

Law as a profession Law is a legal profession and it is closely regulated. You must need to conduct yourself in the correct way when in the profession of law. -

Regulated profession ● Features of profession ❏ Specialization in a specific field ❏ Formal qualification ❏ Special skill

❏ Special service- something that has a critical impact and importance to people's lives ❏ Special relationship- dealing with confidential and private information, client needs to trust the lawyer ❏ Special duties- particular efforts which you have to do to make sure the client is protected and receiving a special service, confidential ❏ Ethical and formal duties they lawyers need to uphold ❏ If you do it wrong, it’s got big consequences

Duties to the client

General duties

Confidentiality - Strict code of conduct - However you have a legal duty - Believe the client is in harm's way

To accept clients - Right to representation - Everyone has the right to a lawyer - Cannot turn clients away because of who they are (political views, race, identity) or what they have done (or if you believe they have done it) - Can’t pick and choose Can turn away if - there is a conflict of interest - they cannot pay - There is a personal connection - If you’re too busy to give the case justice - If you do not specialise in this area of law

Care and diligence - Do the best you can do - Both ethical and contractual Client loyalty, - this loyalty is ongoing - Act on good, sound, and informed reasons - Not be careless Act on the client's wishes

Duty to the court - Assist the court to make a decision - You cannot lie to the court - Loyalty lies with the court

Role differentiation Can a good person be a good lawyer? - Amoral or immoral? - Public morality (morality as a lawyer) and private morality (your personal views)

12/3/19- Annabel The legal profession: History

Early developments -

Richard Hanson was New Zealand's first lawyer. His law firm, now known as Treadwell, is still practicing.

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English legal system was transplanted to New Zealand through the treaty of Waitangi (1840). This established a colonial legal system in New Zealand

These differences were not deliberate, instead were caused by social and historical factors ● English profession ❏ Highly developed- functioned for many years prior ● New Zealand legal profession ❏ Predominantly made up of lawyers from England ❏ Began straight away and grew quickly ❏ New Zealand lawyers acted as both barristers and solicitors ❏ Similar areas at practice to England, except property which was much larger in New Zealand ❏ Regulated by the Supreme court (high court) or ‘self-regulated’

● Growth and independence in the New Zealand legal profession after the first 20 years ❏ 1861, New Zealand based law training began ❏ 1869, New Zealand law society was created ❏ Was still very conservative- committed to the British way ● Exceptions ❏ 1891- first Maori working as a lawyer, Thomas Ellison ❏ 1897- first Mari admitted to the bar, Apirana Ngata ❏ 1897- first female admitted to the bar, Ethel Benjamin

Recent times -

1980’s onwards, significant impacts ● Economic shift, law became more of a business. Less about the people and more about money ● Rise of alternative dispute resolution mediation - mediation outside of court grew in popularity ● Model of practice- urbanisation (less small town lawyers), mega firms ● Location of practice- didn’t just work in firms (banks, companies, in house lawyers) ● Size of profession grew ● Technology Legal profession today -

Nearly 13,000 lawyers in practice Majority based in Auckland, then Wellington, then Christchurch, then Hamilton 50.01% of lawyers are female, and 49.99% are male Average career is 17.7 years Average age is 42 Most work in private firms Commercial and property are the most practised areas Nearly 10,500 LLB students as of 2015

13/3/19- Annabel The legal profession: Woman in law

The numbers ● Legal education, people in law school- 60% female since 1990 ● Admission to the bar- 62% female ● People who practice law- 50.02% female BUT ● ● ● ● ● ●

Length of time in practice- 13 years for females verses 22 years for males Law firm partners- 30% female Queens council- 11% female, less females apply Judges- 33% Head of benches- 44% Earnings- 7%-10% less than males

Equality in the profession Women have gained access to legal education and entrance into the profession, but not into the senior levels. Possible reasons - Just a matter of time till that 60% catches up (statistically incorrect) - Work structure and practices ● Not unusual to work 12 hours plus days, 7 days a week ● Law firms have quotes for how much money you bring into the firm ● Cannot become a partner without bringing in a certain amount of money and amount of hours - Family responsibilities ● Social norm for women to dedicate time to their families and children ● The difficulty for women to raise children and work long hours. A US study found the main reason women left the legal profession was due to “the difficulty of combining law firm work and family commitments in a system that requires long hours in a high pressure environment, with little and inconsistent support and flexibility.”

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Social stereotypes ● Women are distracted by family and not as committed ● Unconscious bias ● Studies show unconscious prejudice against women as leaders ● “ ‘Old boys’ network”, men are less likely to hire, promote, mentor and network women.

Why does it matter? -

Equality and fairness Representativeness Female perspective is lost or not included equally Economic loss ● not using all our resources or people to their highest potential Impacts on behaviour ● Sexual harassment ● Bullying ● 18% of all lawyers have been sexually harassed

What can be done? -

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Legal cultural change ● Schools, firns, associations and individuals Alternative working arrangements ● Flexible and part time work ● Job sharing ● On site childcare Billing scurture Mentoring and networking Innovative firms Leadership Social change Legal reform, government action ● Equal pay act ● Human rights act ● Pay equity ● Gender wage gap

Broader issue

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Not just an issue for women ● Other groups, LGBTQ+, age, non-binary people etc Not just an issue in the legal profession

Conclusions There is equality in education and entry, but not i career progression. Senior appointment and election of women are symbolic and important Systematic gender barriers still exist and it is difficult to see immediate solutions

15/03/19- Grant Legal history

England to 1900 - Early developments - The struggle for supremacy: crown vs parliament - The English courts - Key English cases

Inherited the english law in 1840, and everything we wanted up to 1840. All the rules, statures, traditions, cases, history. Early developments - Pre 1066- Britons, celts, romans, anglo-saxons and danes ● Trial by ordeal, trial by battle, shire courts - Invasions of Romans- celtics, angles, normans, vikings, saxons etc ● When the romans left the took their traditions with them. These traditions were quickly discarded by the invading Angles, Saxons, Jutes and Vikings. ● Anglo-saxons has ways of solving disputes, moot courts and shire courts - When the normans invaded they altered these already existing systems

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In 1066, William the conqueror (norman) invades England ● He became the first absolute monarch ● He used his total power to create common law. Law that was consistent around the entire country, everyone followed the same rules, the kings rules ● Common law is the system of most parts of the world now, it was England's ‘gift to the world’ ● We use past common law cases to guide our decisions in new situations ● Precedent must be followed by all, even if it created an unjust system Writ system, became very complex and increased the need for knowledgeable professionals, lawyers The English Judicature Acts of 1873 and 1875 fused common law and equity, this created a supreme court covering all jurisdiction. Equity has become a part of common law and set clear principles ● Equity regards as done what should be done ● Equity will not suffer a wrong without a remedy ● Equity delights in equality ● One who seeks equity must do equity ● One who comes into equity must come with clean hands

Magna Carta 1297 Imprisonment, etc contrary to law. Administration of justice - No man can be punished unless he faces judgement of his peers, or by the law of the land. - No king can just do as he pleases, the common people want a say in how people are tried and punished. - Mainly used to keep the church and nobility in check - Foundation of the english legal system, protected the rights of an individual

The struggle for supremacy: crown vs parliament -

1295: Edward I established model parliament 1535: Thomas More convicted of high treason 1627: Petition of Rights, controls the relationship between parliament and the crown 1640: Habeas Corpus act 1640’s: English civil war (Parliament wins) 1688: Bill of Rights- Parliamentary supremacy and constitutional monarchy

(Fitzgerald v Muldoon 1976), Fitzgerald won through the use of the Petition of rights

15/03/19- Tutorial 1, Maddie [email protected]

19/03/19- Grant The changing relationship between Britain and NZ ● Started out reliant, but over time began to detach itself from Britain Pre-1840 Developments ● Maori Customary Law ● 1769: Cook’s first voyage to NZ ● 1832: James Busby appointed British resident ● 1839: Annexure of NZ to NSW by extension of boundaries ○ Pending cession of sovereignty Further early developments ● Proclamation 14 Jan 1840 saying NZ was part of NSW, William Hobson confirmed as Lieutenant Governor of NZ, Letters Patent (Charter of NZ) ○ We inherited British law as at that date ○ Shows importance of these constitutional measures, also how by 1852 British were already minimising importance of Treaty ● Officially a Crown Colony ● Treaty signed 6 Feb 1840 ● Maori already had legal structures, new colony had to establish its new legal structures ○ Chief Justice William Martin and puisne judge Henry Chapman ● Pushing for Parliament ● Constitution Act 1852 (Imp.) passed by England ○ Allowed NZ to create laws for NZ as long as it doesn’t conflict w British law ○ Set up provincial system

■ each province had own lawmaking bodies in addition to Parliament ■ Controversial (costly and NZ too small) abolished in 1875 ■ Purpose to do with transport and communication ● Parliament began after C.A.1852 ○ Lower house/House of Representatives ■ passed legislation ■ voted in by adult males with certain amount of property ■ This is the structure we still use today. ○ Upper house/Legislative Council ■ acted as a check on the House of Reps, reviewed legislation ■ Members appointed by Governor ■ Equivalent of House of Lords ● NZ Wars 1860s over 12 year period in North Island ○ Legal result of this is that settler state asserted its dominance ● Colonial Laws Validity Act 1865 ○ let us create laws that conflicted w Britain ○ as long as the law didn’t specifically extent to NZ 1900-1945 - Standing with Britain ● NZ becomes dominion in 1907, doesn’t change law making ability ● WWI 1913-1918 ● Statute of Westminster 1931 (Imp) - provided colonies/dominions w full law making power ○ NZ did not adopt this until 1947 ○ We had strong cultural and economic ties, didn’t want to lose/harm them ○ Apathy by general public, there was nothing wrong so why change it? ○ Tumultuous period, many social issues meant that adopting this statute was not high on the priority list ○ Became clear through WWII that Britain could no longer protect us ○ Also needed to get rid of Upper House

20/03/19- Grant New Zealand legal history: changing relationship between britain and NZ- continued 1945-2003: Legal independence -

World war two (1939-1945) Statute of westminster adoption act 1947 NZ constitution Amendment (request and consent) act 1947

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NZ constitution (Amendment) act 1947 (imp)

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Legislative council abolition act 1950 Corbett v Social security commission (1962) (CA) ● Choosing the privy council over the house of Lords was based upon the desire to follow our own courts. House of Lords was a British hierarchy but was not actually part of NZ. Constitution act 1986 ● Took out ‘request and consent’ sections Imperial laws application act 1988 ● ‘Spring cleaning’, getting rid of all legislations except for what NZ deemed as important Supreme court act 2003 (end of privy council- top of NZ legal hierarchy)

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20/03/19- Grant New Zealand legal history How the law was adapted to the unique NZ environment The 1890’s: - Beginning of proper parties in NZ. ● First proper organised party was the Liberal Party who were in power for almost 21 years - Liberales pushed through controversial legislations at a rapid pace during their first decade in power. ● The Electoral Act 1883: gave women the right to vote ● Industrial Conciliation and Arbitration Act 1894: first nation in the world to introduce compulsory arbitration (the use of an arbitrator to settle a dispute) ● the Land for Settlements act 1892 and 1894: breaking up big land holdings ● The Old Age Pensions Act 1898: first nation in the world to set up a comprehensive pension system The 1930’s:

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Because of the wall street stock market crash in 1929, New Zealand sank into a depression and by the early 1930’s unemployment was at an all time high. The first Labour government was elected in 1935 ● Straight after their election they began creating the New Zealand welfare state. Many people wanted/needed this, but many people were unhappy (mainly wealthy people as their taxes went up) ● Social Security Act 1938, this act provided a ‘cradle to grave’ government support in NZ. This act provided a ‘safety net’ for those who fell on hard times This act included: ❏ The superannuation benefit: building on the existing pension act ❏ The family benefit: available for all children under 16 ❏ The unemployment benefit Crimes act 1961: ● Connects and lists all crimes instead of having separate acts for each crime Accident compensation act 1972: ● Before 1972, when you got hurt or injured you sue whoever as deemed responsible in order to gain compensation. However this act created a communal fund which was available if someone was injured. Although there were many positives, ACC took away NZ’s right to sue, and therefore some people lost the opportunity to receive the compensation they should have gotten, instead received what ACC gave. Lawyers were the most opposed to this as it took work form them.

1940’s to 1984: - 1957: Separate Court of Appeal, over time develops a unique NZ jurisprudence. Eg, NZ Maori Council (1987) - Growing importance of legislation. Eg, Crimes Act 1961, Accident Compensation Act 1972 - 1984: the fourth Labour government was elected, this government pursued liberalisation and freedom. ● State owned enterprises...