Notes LAW121 (A+ NOTES!) PDF

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PART A OF THE COURSE PARLIAMENTARY SUPREMACY & RELATIONSHIP OF COMMON LAW AND STATUTE LAW CONSTITUTION ● The set of rules concerning how laws are made, how laws are administered, how a country is run, who runs it, and how people are protected from abuses of power. ● Describes and establishes major institutions of government, states their powers, regulates the exercise of those powers. ● Comes from a range of sources (e.g prerogative powers of the Queen; relevant NZ, English, UK statutes; relevant decisions of the courts; Treaty of Waitangi; constitutional conventions). ● Currently unwritten in NZ as there is no single document containing all of the above (there is a Constitutional Review in NZ). ● CONSTITUTION OF ACT 1986 - Key formal statement of New Zealand’s system of government, in particular the executive, legislature and the judiciary. - The Act recognises the Queen as the Head of State of New Zealand and the Governor-General as her representative. ● Some British laws have been incorporated into New Zealand law by the Imperial Law Application Act 1988: - Parts of Magna Carta 1297 - The Bill of Rights 1688 - The Act of Settlement 1701 - The Royal Marriages Act 1772 ● Other laws the outline the powers and functions of the three branches of government in more detail include: - State Sector Act 1988 - Electoral Act 1993 - Judicature Act 1908 - Supreme Court Act 2003 ● Other important legislation includes: - Treaty of Waitangi Act 1975 - Ombudsmen Act 1975

- Official Information Act 1989 - The Public Finance Act 1989 - New Zealand Bill of Rights Act 1990, the Human Rights Act 1993

SOURCES OF LAW

COMMON LAW

STATUTE LAW

Made by judges, comes from the courts

Laws made by Parliament + Imperial statutes inherited from England

RETROSPECTIVE/backward-looking

PROSPECTIVE/ forward-looking

Drawn from principles as articulated and applied in precedents/past judgements

Written and published as Statutes or Acts

Often based on certain values of respect for individual dignity and possession of property

Can be about anything, can be specific or general

Judges must have dispute before them

Parliament has greater law-making freedom

When overridden by Parliament, judges must accept their decision as valid

In cases where there is a direct conflict, it overrides common law as per Parliamentary Supremacy

No one “Big Book” where all common law is listed

All NZ Statutes are listed and can be found

COMMON LAW ● SOURCE: The common law is a body of legal principles established by the courts through a series of decisions. ● Contributes to the consistency of law in that it ideally applies the same way to all. ● System was inherited from England. ● Constantly evolving as it develops case by case.

* Judges are duty bound to look at precedent cases whenever a dispute is before them. STATUTE LAW ● SOURCE: Statutory law is the body of laws enacted by Parliament. ● Some of NZ statute law is inherited from England (Imperial Statutes). BRANCHES OF GOVERNMENT ● NOTE: in a Westminster style democracy, Legislature makes law, judiciary interprets and Executive enforces. ● LEGISLATURE-makes law - House of Representatives (elected MPs) - Governor General ● EXECUTIVE-executes law - Prime Minister - Cabinet and non-Cabinet ministers - All government departments - Governor General ● JUDICIARY-interprets law - Judges - Courts - tribunals *does make some law (common law) ON THE PRINCIPLE OF THE SEPARATION OF POWERS… ● For checks and balances of all branches of government. ● Avoids a tyrannical government. ● Avoids autocracy. *NZ’s separation of powers is neither a complete fusion of all branches of government nor complete separation of branches of government- to avoid the above by remain able to run the country and remain responsive to the public. ● William Blackstone (English legal writer): - The concentration of power in one group always presents a danger of potential abuse - Governmental power can be rendered less oppressive by dividing it between the various branches.

- By diffusing power, accountability can be preserved by providing each branch with some form of oversight over the other. ● Note that, practically, we cannot have complete separation of powers as some coordination of the various policies and administration of government is necessary. The trick is to get sufficient coordination to be workable but not so much as becomes oppressive and unresponsive to the wishes of the public. ● Glorious Revolution (1688) - The revolution in England where Parliamentarians overthrew King James II. - Ultimately William of Orange and Mary II became monarchs in his place, after agreeing to sign the Bill of Rights 1688, which ensured the Parliament (not the King) was the only body that could make or unmake laws. RULE OF LAW ● Idea that all individuals must obey the law. ● No one is above the law (including the monarch or the head of the executive government). ● Laws govern everyone, not a single person. ● Separation of powers helps to ensure this; the judiciary determine whether or not the executive government has in fact followed the law. ● Some aspects include: - Due process - In this context, is the idea that a government cannot interfere with a person’s right without following the full course of the law. - E.g a person can’t be imprisoned without being convicted by an independent judge of an offence specified in law. - Part of the wider concept of rule of law. ● Defined differently by different people, but it can be defined to also include other elements such as laws being general and applying to all people equally, and laws being prospective  and not retroactive. ● The general concept is rule according to law as opposed to rule by arbitrary power.

ANNEXATION OF AOTEAROA AOTEAROA COMING UNDER BRITISH CONTROL

TIMELINE OF FORMAL LEGAL STEPS 15 June 1839- Letters Patent extended NSW jurisdiction to NZ. 14 January 1840- Hobson sworn in as Lieutenant Governor. NSW Governor. Gipps signed Proclamation stating jurisdiction of NSW Gov extended to NZ, oaths of office to Hobson as L.G, title to NZ land only from Crown. 19 January 1840- Gipps Proclamation published in Sydney. 30 January- Hobson issues proclamations in NZ stating that he has assumed office of L.G. 6 February 1840- Initial signing of Treaty (the only steps involving Maori). 21 May 1840- Hobson proclaims sovereignty over New Zealand by cession and discovery. 16 June 1840- Laws of NSW officially applied to NZ as per NSW Act. September 1840- Treaty signing completed. 2 October 1840- Hobson’s sovereignty proclamations in May finally published in London. 16 November 1840- Royal Charter promulgated. 24 November 1840- Letters to Patent to commission the Governor of NZ. 5 December 1840- Royal instructions given to Governor. 30 March 1841- Hobson notified of Imperial ratification of Treaty of Waitangi. ● Annexed by 1840? - To judge whether or not NZ was already annexed to the Empire in 1840, whether England already held sovereignty over NZ or whether British law already applied to NZ, we use… - BELICH’S THREE SCALES

- INTERVENTION SCALE- Power and resources exerted to obtain empire. OSTENSIBLE AUTHORITY SCALE- Nominal or imagined situation. ACTUAL CONTROL SCALE- Success of intervention and substance of authority. ● WHY? - British were ‘reluctant imperialists’ but soon caved and annexed NZ. ● Factors that influenced annexation Push from UK - Economic conditions - New markets - Migration Pull from NZ/Australia - Missionaries - Colonists - Merchants and Traders - Ideology - ‘Myths of Empire’ - Anglo-French rivalry - Fatal impact & frontier chaos - Inter-tribal warfare - Self-image of superiority & civilising mission - ‘White man’s burden’ ● SUMMARY - Annexation was a messy process, it did not happen on a single day. Ostensible/nominal authority increased between 1833 and 1840, but intervention and actual control increased more gradually. - The ultimate acquisition of sovereignty by the British was driven primarily by myths of empire.

DECLARATION OF INDEPENDENCE & TE TIRITI O WAITANGI

TREATY OF WAITANGI (1840) ● IMPORTANT BITS ● Maori version got most of the signatures as compares to the English version ● Some iwi didn’t sign = question of ‘cession’ being true and complete ● Misunderstanding in the use of concepts of SOVEREIGNTY, GOVERNISHIP/GOVERNMENT, AND OWNERSHIP/POSSESSION View of most Maori who signed the TOW was that there was to be a dual authority in New Zealand.

MAORI UNDERSTANDINGS (AS BY THE WAITANGI TRIBUNAL LAND REPORT) ● Maori text is the primary text, though actually a chiefs word & honour more important than written text. ● Oral debate most important (but recorded only in English). ● Expectations that Maori would suffer no diminution of mana, of rangatira authority. ● Queen to act as kaitaki/guardian for Maori and Maori to protect Queens Governor. ● Governor to mediate disputes between Maori and European. ● Maori and Queen in partnership/alliance. ● Maori would benefit from Pakeha presence. ● Maori and the Governor would be equal. ● Governor would inquire into land transactions. ● Governor would respect Maori social structure and deal through leaders. BRITISH UNDERSTANDINGS ● Queen would have absolute authority. ● Radical title held by Crown. ● ‘Waste lands’

BRANCHES OF GOVERNMENT- LEGISLATIVE: PARLIAMENT AND THE ENACTMENT OF LAW

FPP (First Past the Post) pre 1996 ● ‘Unbridled power’ to the party with the most seats even if it did not win as many votes as the opposition party. ● Executive (cabinet) had near total power by control of the governing caucus and thus of Parliament. - efficient law making/ ‘Executive paradise’ ● Accountable to electorate every 3 years, BUT during their term, governments were not bound by their election manifesto. MMP (Mixed Member Proportional) since 1996 ● Parties must work together to form a majority in Parliament. ● Executive is less dominant. ● Increased distinction between executive and legislative branches. This shows the legislative process. ● More debate in public. ● Government Bills not always passed.

FPP TYPICALLY PRODUCED 2 VIABLE POLITICAL PARTIES

● In comparison to a system of proportional representation, FPP allowed only one part to hold the majority of power. Therefore, most citizens felt that in order for their

vote to have an impact, they had to choose between the two primaries. ● Also under FPP, real political choice was limited, in comparison to MMP. LEGISLATIVE PROCESS (HOW THEY MAKE OUR LAWS, AND WHAT ROLE WE PLAY) ● HOW A BILL BECOMES A LAW ● There are several stages that a bill passes before becoming an Act of Parliament. These stages ensure that a bill is subject to public debate and scrutiny. Some of these stages also provide an opportunity for a bill to be charged. STAGES ● Introduction ● First reading ● Select committee ● Second reading ● Committee of the whole House ● Third reading ● Royal assent/Governor-General’s assent ● Coming into force NOTE- The term ‘reading’ dates from the time when bills were read aloud in the house of Commons in Great Britain. Only the title is read aloud in the New Zealand House of Representatives. INTRODUCTION ● A bill is publicly available after its introduction. Introduction is an administrative process that is later announced in the House. A bill has no formal existence until it is introduced. FIRST READING A first reading debate provides the first chance to debate a bill in the House. ● It can occur no sooner than the third sitting day after a bill’s introduction. This delay allows members time to look at a bill and decide if they agree with it. It also

allows the Attorney- General time to make sure that a bill is consistent with the New Zealand Bill of Rights Act, 1990. ● At the end of the debate the House decides if a bill should progress and votes on whether it should ‘read a first time’. If a bill is defeated in the vote, that is the end of the bill. If the ‘first reading’ is agreed, the bill is usually referred to a select committee to be considered in more detail. SELECT COMMITTEE ● Once a bill is referred to a select committee, the committee usually has 6 months to examine the bill and prepare a report for the House. ● Select committees normally invite public submissions on a bill. Then they hold public hearings to listen to some of those who made submissions. After hearing submissions they work through the issues raised, and decide what changes, if any, should be made to the bill. **The select committee’s report contains: - A reprint of the bill with recommended changes (known as amendments) - A commentary in which the committee explains its recommended changes and the issues it has considered. SECOND READING ● A bill can be read a second time no sooner than the third sitting day after the select committee reports to the House. Members can then debate the main principles of a bill, and any changes recommended by the select committee in its report. ● Changes not supported by every committee member are subject to a single vote at the end of the second reading debate. ● Changes that are supported by every committee member are automatically included in the bill is the second reading is agreed. ● If the vote is lost, that is the end of the bill. If the second reading is agreed, the bill is ready for debate by a committee of the whole House. COMMITTEE OF THE WHOLE HOUSE ● Any member of the House can participate when a committee of the whole House debates a bill. The members sit in the Chamber but the Speaker does not take the chair. The debate is less formal than other debates, but is no less important.

● Members have many chances to make short speeches and debate provisions of a bill. These debates are a chance to examine the bill in detail. Ministers and members can propose changes. These changes may be published before the debate in a supplementary order paper (SOP). ● There is no time limit on these debates. Large or controversial bills may be before a committee of the whole House for several days. ● Once the final form of a bill is agreed, it is reprinted to show any changes that have been made. The bill is then ready for a third reading. THIRD READING ● This is usually a summing-up debate on a bill in its final form. ● The vote at the end of the debate is the final vote in the House to either pass the bill or reject it. Bills are rarely rejected at this stage. If the bill is passed there is one final step before it becomes law- Royal assent. ROYAL ASSENT ● A bill is not a law until it is signed by the Sovereign or the Sovereigns representative in New Zealand, the Governor-General. This is called the Royal assent.

BRANCHES OF GOVERNMENT- COURTS AND JURIES Courts and roles of courts ● Resolve disputes ● Apply law to facts/fact case ● Interpret the words of statutes ● Clarify law ● Create law (as in common law, especially when the conditions of a case are new/unique) CHARACTERISTICS ● Limited by jurisdiction DEFINITION OF JURISDICTION

● The power or ability to hear a certain  case  ● Limited by subject matter (e.g Employment Tribunal cannot hear a tenancy case.) ● Limited by geography ● ORIGINAL JURISDICTION = The right of a court to hear and determine cases at first instance. ● APPELLATE JURISDICTION = The right of a court to hear and determine appeals against previous court decisions or decisions delivered lower in the judicial hierarchy. ● Supreme Court and Court of Appeal = exclusively appellate jurisdiction ● All other courts = original jurisdiction. ● High Court and District Court = both original and appellate jurisdiction. ● Civil versus criminal jurisdiction = sources of jurisdiction assigned to a particular court. STATUTE ● All courts except High Court exercise a statutory jurisdiction. INHERENT (SUPERIOR COURTS ONLY) ● High Court exercises inherent jurisdiction (giving it general supervisory power). ● Inherent jurisdiction is wide and ill-defined. ● Generally a jurisdiction held by superior courts to decide how to adjudicate upon subject-matter and between parties, and decide upon relief. HIERARCHICAL ● Supreme Court- Court of Appeal- High Court- District Courts- Tribunals and Authorities. ● New Zealand’s judicial system comprises (in descending order of hierarchy): - The Supreme Court of New Zealand - The Court of Appeal - The High Court - The Courts Martial Appeal Authority - The District Court - Other specialist courts, namely: the Employment Court, the Environment Court, the Maori Land Court, the Family Court, Youth Courts and courts martial (military

courts). Note- The first four courts are ‘superior courts’ and the remaining ones ‘inferior courts’. A inferior court is any court of inferior jurisdiction to the High Court. Some tribunals, such as the Disputes Tribunal, are also deemed inferior courts for particular purposes.

JURIES ● Role = find verdict on facts, after direction from Judge on the law. ● More on the right to a jury trial… - Trigger: any criminal offence punishable by more than 3 months imprisonment soon to be 2 years imprisonment. - Rare in civil jurisdiction.

CASE STUDY- FITZGERALD V MULDOON ● Origins of litigation ● New Zealand Superannuation Act 1974- passed in 1974 by Labour Govt. ● This required mandatory pension contributions by employees and employers for all workers over the age of 17. Contributions could only be withdrawn if people were leaving the country permanently and payments would begin upon retirement from the age of 60. ● Muldoon’s actions. ● Muldoon issued a statement (‘You can all stop paying contributions…’) before the

Act was abolished by Parliament. ● As head of Executive, he did not have the power to abolish laws. ● Even though National had majority in Parliament under the FPP system and the Act would most definitely be abolished because of that, Muldoon’s statement crossed the line of power. - Parliament hadn’t even met yet. ISSUE AND DECISION ● Issue- Was Muldoon acting illegally in giving that statement? ● What did Fitzgerald ask for? ● Declaration- that Muldoon did act illegally in giving that statement? ● Injunction- court order (wasn’t granted) ● Decision- Muldoon’s actions were illegal REMEDY AND AFTERMATH ● Remedy ● Declaration granted ● Adjourned other matters for 6 months ● Parliament was able to sit, 1976 Act passed ● Injunction NOT granted AFTERMATH ● Superannuation Schemes Act 1976 SEPARATION OF POWERS & THE RULE OF LAW ● What does the case say about: - Separation of powers ? - Rule of law ? - Parliamentary supremacy ? - Role of the judiciary ? ● Should the executive ever have the power to suspend law ? ● Role of the Governor General ? - Thoughts by many that he should have stepped in as the theoretical head of the government. - What could he have done ?

- Called Parliament into session BUT by convention, he only acts on advice of the Prime Minister END POINTS ● The case looks at the balance of power between the Executive and the Courts. Courts act independently to the Executive ● Court holds the Executive to the rule of law - Executive must obey the law - Only Parliament can make or change an Act - The Courts insist on this

PUBLIC INTEREST AND PRIVATE BODIES- FINNIGAN V NEW ZEALAND RUGBY FOOTBALL UNION NOTE ● Finnigan v NZRFU = involves private bodies; Fitzgerald v Muldoon = involves public bodies (i.e. the state) ● Different law standards used - Private law standard- private bodies can do anything as long as there is no law that says otherwise. - Public law standard- public bodies an only act if there exists a law enabling them to do so. BACKGROUND- international significance ● 1948 on- South Africa apartheid regime - Apartheid- system of racial segregation formalized through legislation in South Africa - 1928,1949- Maori players excluded from All Black tours to SA 1960s “No Maori No Tour” campaign still excluded - 1960s - UN sanctions against SA - 1973 - Labour Govt called of SA tour to NZ (to discourage contact with a country with a condemned political r...