Public Law Notes 2021 PDF

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Public LawSe me st e r 1, Te rm 1What is Public Law?L e c t ure 1, 23/ 02/ 202 1Public law – the interaction between the individual and the state. Public law is essentially all law because all law as a connection to the state. (broad definition)Constitutional Law – between the individual and the ins...

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Public Law Semester 1, Term 1

What is Public Law? Lecture 1, 23/02/2021 Public law – the interaction between the individual and the state. Public law is essentially all law because all law as a connection to the state. (broad definition) Constitutional Law – between the individual and the institutes of government. Administrative Law – between the individual and the executive.

Concepts Lecture 2, 24/02/2021 Not all definitions are concepts, descriptions may fit but that does not mean the conception fits. We do not have descriptions and clear-cut concept of law. No international language of law which creates issues with concepts.

What is law? Formalism vs Functionalism – law is defined by its form or by its function. Formalism is that law is law when laws are generated by a system. Unless the rule falls under harts’ formal model (which is a description) it Is not a law. The problem as that it excludes a lot of import things like customs, morals, international law, treaties ect. Which are still important. the rule of recognition – the basis of the law primary – the rules by which rules are made. secondary – the rules that apply to you and I

Prof. Karl Llewellyn Law cannot exist without society and society can’t function without laws. For groups to operate certain things done such as flats, sports teams, classes towns. The law Jobs: 1. 2. 3. 4.

Resolving the trouble case – solving disputes Channelling expectations – rule making. Net drive – decision making where we want the group to go Allocation of authority – some sort of hierarchy

Does not matter how any of these jobs are accomplished if they are done somehow. It Is a broader conception of law than Harts model. However, all societies cannot function without these rules from kids playing a game to a state. Lecture 3, 25/02/2021

The functionalist tradition Every state must have some mechanism (government) to ensure it works. Most countries use a more formal definition of a constitution than that used in New Zealand.

In the late 18th century, there is a major shift in the nature of a constitution with the 1789 constitution of the united states. 1787 the states decided to convene a meeting to revise the articles of a federation. They draw a system of government of a new state (American Constitution). Was not a description of power but instead the source of all power in the state. There are many fundamental problems as it cannot be changed easily, and its check and balances do not always work. The French state funded the Americans which ended up bankrupting the French which led to the revolution. The French constitution is based on rights which the American constitution did not introduce till the first amendment. It was made in 1789 and has been revised and amended many times, every source of power comes from that document (not always directly but eventually through statutes it will link back to the constitution. Overall, this has established a tradition in which lots of states have ended up by having a written constitution where all power comes from which can be one or more documents. The only countries that don’t have written constitution are the United Kingdom, New Zealand and Israel.

The importance of functionalism in New Zealand •

We must examine not the form but the function to understand New Zealand’s map of power (how do the functions of the state and the constitution work).

New Zealand constitutional framework: •

• •

The treaty of Waitangi - The founding document of New Zealand. The issue is not whether or not it is the founding document but about its legal status and what it means and what its role is in modern times. The rule of law – all of government must be subject to ‘the law’. The government can only do things that are considered legal. Parliamentary sovereignty – an English concept, the parliament is the absolute sovereign and can make or repel any law it wants.

Other less significant places the constitution is found. • • • • • • • •

Statutes Judicial decisions Instruments of the royal prerogative Conventions Parliamentary rules International law Practice Other documents

The Treaty of Waitangi Maori thought they were giving government to the British and the British thought they were getting sovereignty which is complete power. Maori also thought they were getting chieftainship over their land which is sovereignty in essence but they were only get possession.

Was decided to be simple nullity in 1877 and nothing more than a political document. In 1987 the crown must act in a manner that is consistent with the principles of the treaty

Parliamentary Sovereignty Parliamentary sovereignty allows parliament to make or repeal any law whatsoever. Albert Venn Dicey – legislation of parliament is the highest source of law and no person or body has a right to override parliamentary law. Advantages: • •

All acts of parliament will be followed by the courts. Parliament is only representatives of the general population. (based on the idea that we can trust the representatives and the majority will make a good decision)

Disadvantages: • •

No body (other than parliament) can derogate from the Act of parliament. Have such derogation enforced by the courts.

Consequences: • • •

Cannot bind successors – it cannot limit itself. Doctrine of implied repeal – no way to entrench documents. Limited judicial review - no judicial review of legislation, the enrolment law

Lecture 5, 3/03/2021 The US model is that the constitution has more power than parliament and therefore if parliament attempts to pass legislation courts and judges can strike It down if it does not work with the constitution. This wasn’t a particularly popular model and remained largely as a US only model and a an exception to the usual rules. However, after ww2 and Hitler getting to power legally and then destroying the constitution made parliamentary sovereignty fall out of fashion and most states now have some sort of constitution to keep parliament in check. Lecture 6, 4/03/2021 Only very few have extreme parliamentary sovereignty with the UK and New Zealand the most extreme. New Zealand parliament was largely free but not completely as it was limited by Britain as all colonies and dominions were. The statute of Westminster gave all dominions independence (Australia, Canada, Irish, New Zealand, union of south Africa). However, states that want independence must apply and so New Zealand didn’t want to for various reasons wanted to stay under the rule of Britain. Legislative council – was to be appointed by the crown would ask for advice to the government who to appoint and so the party in power would suggest those from their party so it was essentially useless. To remove the second chamber they had to change their constitution and that required them to adopt the Westminster statute which gave us independence. Although they didn’t really consider

being independent, they just wanted to change the constitution and so didn’t have any plans to from some sort of constitution and so it adopted the UK’s model of an unwritten constitution. Dicey claims that the constitution came about from a revolution and the bill of rights in 1688. William is invited to take the throne on some conditions the main being that he will have limited and power of parliament becomes sovereign.

The Rule of law Lecture 7, 9/03/2021 The rule of law is a basic and old concept. There is 2 approaches to the rule of law Substantive – there are certain things that no matter what authority you have there are certain rules that are so wrong they take you outside of the law. Mostly human rights. Can be established through international agreements such as the human rights, or constitutions. Formality – the substance can be anything as long as the law is passed correctly as long as it is legal within the legal system.

The development of the rule of law in England o

o o

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Magna carta 1215 – there were some small section saying, no freeman shall have there rights of self or land or be imprisoned with fair judgement from his pairs or by law of the land. Statute if Westminster 1354 – makes the provisions in the magna carta more prominent, no rights can be removed without the law stating they must be removed prohibitions del roy 1607 – the commen law tries to take cases and the king intervenes, the courts intervened and said you have to follow the rules and cant go moving cases to from religious to commen law courts. Bill of rights 1688 – the law in England gets partially codified

Entick v Carrigton 1765 – Carrington and his men come in a seaze enticks papers and arrest him for the suspect of treason. However, Entick argues that there was no authority to to allow the secretery state to issue a warrant. The judge said if it is not written in our books it is not law. And because it wasn’t actually written down anywhere it was instead trespass by Carrington even though he was doing the right thing he was charged with trespass.

Codification of the rule of law in the united states 5th amendment that no person shall be charged with a crime without due process of law and nor rivate property without compensation. 14th amendment no state shall make or enforce any law which shall abridge privlidges or immunities.

The rule of law in New Zealand The traditional approach is Dicey’s rule of law 1. The predominance of regular law – that all are equal law. All government actions must be lawful (Entick v Carrington). Equality before the ordinary law (the ordinary law in New Zealand applies to everyone). Individual rights will be found in the judgement of the common law (case law)

Blundeel v Attorney-General 1968 – there was no warrant or other reasons for his arrest. If the officers had acted reasonably they had done it under the rule of law. However, it got over-ruled as that is not the rule of law. Ministry of Transport v Payn 1977 – payn refused to take a breathaliser test and the ministry took him to court over it. However, because it was on private property and he had asked them to leave it was not viable under the rule of law. Fitzgerald v Muldoon 1976 – Muldoon statement are beyond the power that he has. The pretended power of suspending laws given by parliament is a breach of the bill of rights and the action is illegal although at the time it was illegal. We use a formal system in New Zealand

Is the formalist view enough for New Zealand? Lecture 8, 10/03/2021 Critiques – is it a true historical account? Is the formalist rule enough to restrain the power of parliament? Chinese Immigrants Act 1881 that discriminated against Chinese immigrants exclusively. Because of the formal rule of law and that we have parliamentary sovereignty it was allowed and never disputed until it was repelled by parliament in 1940. Public safety conservation act 1932 – in the event of emergencies the government can do absolutely anything. An offense to encourage, aid or abet strikers during the watersides dispute. This was really strict. Foreshore and seabed’s act 2004 – government made an act that stopped the maori from reclaiming there land and without having to give compensation

Challenges to parliamentary sovereignty Although parliament is sovereign it is still brought to question and a lot of courts are reluctant to act on new legislation that contradicts constitutional legislation that is older unless explicitly stated, Laws that attempt to override fundamental rights.

Other sources of constitution Statutes: 1986 Constitution Act – set the four parts, sovereign, Executive, Legislative and the judiciary. Sovereign Head of state being the queen although the governor general has more poer but acts under the advice of the prime minister. Executive Ministers – must be members of parliament, any minister can do any of the jobs in the executive council. Parliamentary under-secretaries Attorney-General

Legislature – The longest section Always in existence (There is always a legislature) Members are MP’s Requirement of oath to sit or vote Speaker elected by majority as appose to a super majority as seen in other states Judiciary Must be independent from the other sections, cannot be removed unless foul play and cannot receive a paycut (incase of pressure from parliament to act a certain way) The electrol Act 1993 – defines our electoral system Voting process – 2 votes party and constituency Can be used to limit the power of parliament – if there is a procedure in a act that must be obeyed to change the act it must be obeyed such as setting a supreme majority. These acts involve the voting age and changing the electrol system or the term of parliament ect. Local government Act 2002 – provides the basis of sub-national government Official information Act 1982 – the purpose to improve availability of official information to the people of New Zealand Human rights Act 1993 – anti discrimination legislation. Including age, colour, disability or religion NZBORA 1990 – to affirm, protect and promote human rights (civil and political). Matter under this act can only be taken up if the party in question is the state or someone appointed by the state. Parliament can also interfere with the judiciary. Conceptual – Royal Prergoative involved in defence, international affairs, statutory affairs Common law and judicial Decisions

Institutions of Government/Separation of Powers Lecture 10, 16/03/2021

Three branches of Government •

•

Executive – the sovereign and Government such as ministers and cabinet as well as minister departments state agencies and the police armed forces and so on. Concerned with administration which involves the implementation and the enforcement of the rule. They also create their own law through regulations made to specify the broader nature of statutes. Under our electoral system the majority has most of the votes and so most of the law made by the legislative is influenced heavily by the executive. The judiciary – the court system, develops common law, interpretates the law and resolves disputes between individual or the state and individuals. The hierarchy of courts make up the general structure of the judiciary. Some bodies/tribunals are less obviously judicial in nature.

•

The legislative – Parliament, primary law-making body. Concerned with creating the rules. Comprised of democratically elected members to represent the people. As well as subordinate legislation that is bylaw created by the councils ect..

The three branches combine to create state governance (constitutional power)

Separation of powers Montesquieu – writer of the multi volume spirit of law series, talked about the separation of powers to limit power and therefore avoid the corruption of absolute power. Power should be checked by other powers to contain it otherwise there would be tyranny and so it is a necessary of democratic governments.

Features of the doctrine Normative, not descriptive and not universal Separation is not clear cut and all ministers of the executive are also all members of the legislative, not universal it shows a model that should or is somewhat part of the government system but is not necessarily part of the governance or not a primary part for some societies. Lecture 11, 17/03/2021 The reason of this doctrine is to ensure proper separation of power to ensure liberty. Matt Lockean’s view was more focused on the legislative branch and the executive branch and natural justice. And that no one should be the judge of their own course, hence the impartial and objective judges. To prevent the people from creating and then enforcing that law is unjust.

Separation Models • • • • •

Legal Functional Constitutional De Facto Physical*

*not a main separation model Legal Separation: Separation of the branches through law, such as constitutional law and statute. There is legal separation between the judicial branch and the others. Although the executive and legislative branches are the political branch is not separated. Under the Westminster separation the political branch does not really fit and cannot be separated. Functional Separation: Each branch is separated functionally each with their own role towards the goal of state governance. Clear difference between the judiciary and the political parties and even though the Ministers can be part of both the executive and the legislative they still preform different roles in each position and therefore preform different functions as a result. Fitzgerald v Muldoon is an example of how ministers in the executive cannot attempt to perform the role of parliament as Muldoon attempted to suspend a statue which is possible but only through the power of parliament, not executive. Constitutional Separation:

Separation of the powers through a form of supreme law, such as formal constitution or bill of rights etc... However, we do not have a codified constitution and hence we do not have separation of powers through our constitution in New Zealand. De facto Separation: A separation of power not through any of the prior methods. It is not a formal model but instead comes from the general respect the separation is necessary. It is unofficial and not legally enforceable but instead exists because of a shared need of separation based on the need on respect for the institution. Physical separation: Although the branches must work together to some degree, we must at some point that we draw the line. Especially between the judiciary and the executive where the executive provide the resources to the judiciary but must be careful to only interfere with the administration side and not the judiciary side but even then, scheduling what judge hears what etc. should be done but the judiciary. It is important that the general public can see a physical separation between the branches as they know a lot less about the structure of government.

Does the doctrine of Separation of powers work in Aotearoa? 1. Does the conceptual requirement as advanced by Montesquieu work in NZ? There should not be individuals that are part of the same parties, one institution should not interfere with the working of another branch (although this only applies to the day-to-day workings branches should interfere or check other branches as that is part of the working of separation) and one branch should not exercise the function of another. New Zealand does not meet any of these requirements as set out. Ministers are part of both the executive and the legislative and the sovereign also has some say over matters of the legislative. Although there is no crossover membership between the judiciary and political branches.

Does the judiciary and legislative meet Montesquieu’s principles? There is no personal overlap between the two branches Ministry of Health v Atkinson 2012 – the discrimination against the parents of disabled children not being able to receive subsidies whereas other third-party carers can. The movement encouraged the government to release an amendment act to solve this issue. However, there is overlap between the judiciary and the legislature although both preform some form of law making as the judiciary can create law through precedent and the common law system and the legislature creates statutes. However, although law does come out overtime it is not the primary focus of the courts and is of little concern. Between the legislative and government there is no individuals in both branches although there is some degree of interference between the two and branches do to some degree have a similar functions.

Does the judiciary and Executive meet Montesquieu’s principles? There is some mixed membership between the judiciary and the executive as judges can be appointed to commissions/inquires. This is when a problem is taken to the privy council instead of

any minist...