A Part 1 - Leah Flashcards
1
Q
3 Key Points of Parliament
A
- Highest Authoritive Law. 2. Acts of Parliament trump every other form of law, including previous acts of parliament and the common law. 3. judicial interpretation is bound by Parliament, and at some point, the Judiciary must accept that Parliament has spoken clearly even if the Judiciary doesn’t agree.
2
Q
Who can declare an Act of Parliament invalid?
A
Parliament, no one else
3
Q
Is there any express limit on what Parliament can or cannot legislate on?
A
No express limit
4
Q
What prevents Parliament from making legislation?
A
Nothing, but there is political, public pressure and matters of morality
5
Q
What does NZBORA S 4 say?
A
Courts cannot refuse to apply an Act of Parliament
6
Q
6 Things that limit Parliamentary Supremacy?
A
- as per s 7 of NZBORA, the AG will give notice or produce
a report and gives it to Parliament outlining that the propsed legislation is inconsistent with NZBORA. 2. the Courts may declare that it is inconsistent with NZBORA if it is examined by them. 3. the current Parliament can restrain a future Parliament by making laws that can only be amended by a “super majority” (75%). 4. election terms are 3 years so in order to stay in power, Parliament may feel limited by the views of people voting them in. 5. the MMP system in Parliament is made up of multiple different political parties which different ideological backgrounds, limiting how much one party’s ideology makes it into law. 6. the ROL means that Parliament is subject to the law and not above it.
7
Q
3 brances of NZ Govt?
A
- Legislature. 2. Executive. 3. Judiciary
8
Q
why is the separation of powers incomplete?
A
there is overlap particularly between the executive and legislature; e.g. all ministers (L) must also be MPs (E). the courts tend to stand to the side and referee, must be careful not to overstep its boundaries by creating policy - this is the role of the “political” branches.
9
Q
why is the power division between branches not equal?
A
because Parliament is supreme
10
Q
what does the ROL mean
A
everyone is subject to the law, no matter their status or power. the Govt + Executive need legal authority before they can act. this makes us all equal before the law.
11
Q
why must the law be certain and clear?
A
so that everyone knows what rules they are subject to before they act. Everyone deserves a fair trial before an independent, impartial court. Effective access to justice is necessary!!
12
Q
what is the role of the judge?
A
interpreting and applying the law
13
Q
what is crucial that the judges remains as?
A
Independent from other bodies in order to properly uphold the law
14
Q
who was the first known “lawyer”?
A
Marcus Tullius Cicero
15
Q
what happened in 1841-1856?
A
great britiain and irish qualified lawyers could practice, but slowly, locally qualified people were allowed as the criterea widened to allow enrolement of colony-born
16
Q
when was the first Roll of Barristers and Solicitors admitted to practice opened in Auckland?
A
1842
17
Q
what Act allowed for a divided profession (barristers + solicitors), but it was not exercised?
A
Law Practitioners act 1861
18
Q
what do you need in NZ to be a “lawyer”?
A
a licscened practicing certificate
19
Q
what is the Act that sets out the ethical rules + duties, including a duty in court, of a lawyer?
A
Lawyers and Conveyances Act 2008
20
Q
what do lawyers stand between?
A
the individual and justice/access to law
21
Q
who can lawyers NOT refuse?
A
clients whose views they disagree with e.g. neo nazi client and a jewish lawyer
22
Q
13.1 of the Lawyers and Conveyances Act 2008? :A lawyer has an absolute duty of…”
A
“A lawyer has an absolute duty of honesty to the courts and must not mislead/deceive the court”
23
Q
what is the Cab Rank Rule?
A
if you are a lawyer, you have to accept any work in the field if you are asked to do it and are competant in that area
24
Q
what does a barrister do?
A
advocate, appears in court, “trial lawyers”
25
what does a soliticor do?
soliciates information from clients, advises clients and barristers; does NOT go to court
26
what is most of the work that lawyers actually do instead of going to court?
negotiating settlements as it avoids expenses + uncertainty of trial
27
transactional + people law?
transactions for people, small businesses (wills, family trusts, real estate)
28
transactional + big law?
transactions for corporations (mergers, acquisitions or intellectual property etc)
29
conflict and dispute resolution + people law?
Resolving conflict for people (family law disputes, argument with neighbour, criminal law)
30
Conflict and dispute resolution + big law
dispute resolution for corporates
31
what percent of people in 2020 actually like lawyers?
43%
32
who is infront of lawyers in least trusted professions?
council workers, journalists
33
lawyers as "liars"?
manipulating the truth to benefit their client
34
lawyers as "greedy" and who said it? Henry P...
"A lawyer is a learned gentlemen who resuces your estate from your enemies and keeps it to himself" (Henry Peter Broughman (1788-1868)
35
Lawyers as "obstructing justice"?
using loopholes to benefit their client
36
what is legislature commonly known as?
the Parliament
37
how many MPs in Parliament and what are they?
120 MPs from a variety of parties, they are elected officials voted in by the public every 3 years
38
what happened if the majority of MPs vote in favour (50% or more)of a Bill?
it will become an Act
39
what is a Bill?
draft legislation
40
what is an Act per s 16 of...
bill that has been passed into law as per s 16 of the Constitution Act 1986
41
what does The Constitution Act 1986 say about a Bill becoming law?
a Bill becomes law when it receives royal assent from the Governor-General or the Sovereign
42
2 key points about Parliament?
1. it is sovereign; it has the full power to make laws (Constitution Act 1986, s 15) and in theory it can pass any laws it wants. 2. Par- liament's laws are supreme; their laws are higher than any other form of law in our legal system. there is no form of entrenched constitution or any other form of law to override Parliament's laws
43
Relationship between Parliament and the Govt of the day (3 points)
1. Parliament is elected every 3 years in the general election.
2. the party/parites that hold a majority of seats in Parliament come together to form the Government (of the day).
3. the majority parties' members (MPs) then become ministers who lead the Govt.
44
FACT: Govt formulates policy...
...Parliament makes legislation
45
Constitution Act 1986 s 6? All ministers of the Crown must also be...
All ministers of the Crown must also be members of Parliament
46
Constitution Act 1986 s 14? Parliament consists of the...
parliament consists of the Sovereign (Governor-General) in right of NZ and House of Representatives
47
Constitution Act 1986 s 10?
the House of Representatives is made up of elected members of Parliament
48
Constitution Act 1986 s 17? P
Parliament has a term of 3 years
49
Who leads the Executive?
Govt ministers who precide over the different Govt agencies
50
ross over of legislation and executive?
all ministers have to be MPs
51
how does the Executive "executes" the laws created by Parliament
- it puts them into effect + makes sure they are working well
52
what do Ministers do?
design policies and put them before Parliament
53
what do the courts create?
courts create common law by resolving disputes brought before them
54
judgements issued by the courts =
case/common law
55
how do the judges hold the Government to account?
by scrutinising Govt action ("judicial review")
56
why is it significant that parties involved can appeal judgements if they believe they were incorrectly decided?
good as we want the maximum number of courts looking at important judgements
57
why must the judiciary interpret and apply legislation free from external influence?
It might hinder its ability to figure out the meaning of ambiguous words; e.g. interpret it in favour of one outcome of a party
58
Winkelmann CJ quote about judicial independence: "judicial in- dependence is ______________ if the judiciary is to fulfil its constitutional role of ________________ the excercise of public power + upholding the ______ ___ ______. a judiciary which only serves the interests of the Government, or subsections of society, will soon lose its __________________ as it will not be fulfilling; its fundamental task of ensuring that we are all _________ before law."
Winkelmann CJ quote about judicial independence: "judicial independence is essential if the judiciary is to fulfil its constitutional role of checking the exercise of public power + upholding the ROL. a judiciary which only serves the interests of the Government, or subsections of society, will soon lose its legitimacy as it will not be fulfilling; its fundamental task of ensuring that we are all equal before law."
59
Courts help to...
Constrain Parliament power
60
if our judges do not feel they cannot make decisions without being influenced by the other branches of Govt, this means they...
May not decide cases fairly + freely
61
2 levels of judicial independence
1. at the level of the institution of the Judiciary as a whole. 2. at the level of the individual judges
62
5 ways judicial independence is maintained
1. all judges are to take a judicial oath before their appointment as a judge as per s 18, Oaths and Declarations Act 1957.
2. judges are appointed through a fundamentally non-political process. 3. high court judges can only be removed for misbehaviour or incapability s per s 23, Constitution Act. 4. salaries of judges cannot be lowered while they are in office as per s 24, constitution act.
5. salaries are set by an independent entity (the remuneration authority)
63
2 ways to think about the "common law" - 1. as "common law" as the law from the _____ (in contrast to legislation - which = law from _______ ). 2. as the "common law" METHOD - which refers to law determined by precedent which builds over ______.
1. as "common law" as the law from the courts (in contrast to legislation - which = law from Parliament). 2. as the "common law" METHOD - which refers to law determined by precedent which builds up over time.
64
In the earliest times of "law", there was a distinction between ________ law and the law of ___ _______.
In the earliest times of "law", there was a distinction between religious law and the law of the people
65
The Code of ____________ is an example of religious law - the Code came from God and was sent down to a _______ who created it. it contained ___ laws which were engraved on a _____ ______ and put in a place for everyone to see so they could ________ their _________ accordingly
The Code of Hammurabi is an example of religious law - the Code came from God and was sent down to a King who created it. it contained 282 laws which were engraved on a stone pillar and put in a place for everyone to see so they could regulate their behaviour accordingly
66
the______ ______ _______ (today known as the Civil Code) is an example of law from the people/Roman Law. this code came from the people, developed from their ________ + traditions. they were written into _ ____ which now Governs civil jurisdictions
the Corpus Juries Civilius (today known as the Civil Code) is an example of law from the people/Roman Law. this code came from the people, developed from their customs + traditions. they were written into a Code which now Governs civil jurisdictions.
67
What law operated in England when Rome conquered England? from how long?
Roman Law 43-426 AD
68
what happened when rome withdrew from England, and what did the anglo-saxons now rely on?
they took their laws with them, and the anglo-saxens relied on alternative trial methods + local unwritten customs
69
Anglo-saxens had a _________ aspect which the Roman law had taken out. those determining the law did not see themselves as making law, but rather as receiving signs ____ _____.
Anglo-saxens had a religious aspect which the Roman law had taken out. those determining the law did not see themselves as making law, but rather as receiving signs from God.
70
What law was used in France in 1066?
Roman Civil Law
71
when did William the Conqueror arrive in England?
1066
72
William the Conqueror allowed the English to continue using _____-_____ law. but because William had control over all of England, this meant he could direct how the courts were to _____ this law. this had the effect of some ___________ on how the law was being applied.
William the Conqueror allowed the English to continue using an- glo-saxen law. but because William had control over all of England, this meant he could direct how the courts were to apply this law. this had the effect of some consistency on how the law was being applied.
73
William introducing ___________ on how the law was being _______wasthebeginningofthelawbecoming"common"which is why we use the term "common law"
William introducing consistency on how the law was being applied wasthebeginningofthelawbecoming"common"whichiswhywe use the term "common law"
74
when did Henry II rule?
1154-1189
75
Henry continued on from William the Conqueror by maintaining the tradition of strong ____________ ____ and nationalism of _____ _______.
Henry continued on from William the Conqueror by maintaining the tradition of strong centralised rule and nationalism of local customs.
76
2 features that Henry ingrained in our legal system that persist in our legal system today:
1. the writ system. 2. trial by jury
77
the writ system was introduced by _____ __. previously, you just had to hope that the person you were taking to court would show up. with the writ system, it brought the King's ___________ _____ with it.
the writ system was introduced by Henry II. previously, you just had to hop that the person you were taking to court would show up. with the writ system, it brought the King's enforcement power with it.
78
did Henry II come up with trial by jury?
no, he systematised. it- it was already being used.
79
trial by jury is good because it recognised the law was of the ______, rather than the law of ___.
trial by jury is good because it recognised the law was of the people, rather than the law of God.
80
what was introduced to address the lack of flexibility in the law
a distinct body of law known as "equity"
81
where was equity dealt with?
a specialist court known as the court of chancery
82
what did the court of chancery do?
when normal courts could not provide a remedy, but it iwas in the best interests of justice that a remedy was given, the court of chancery would issue one.?
83
what happened on the 6th february 1840
te tiriti signed
84
what happened on the 21st may 1840
proclamation of sovereignty by William Hobson
85
what happened on the 3rd may 1841
NZ was proclaimed a colony
86
when was the Supreme Court (now High Court) established?
1841
87
when was the Magistrates Courts established?
1846
88
when was the Court of Appeal established?
1862
89
English common law ________ said that the English settlers took their ___ ___ with them when settling new countries.
doctrine, common law
90
What did the English Laws Act declare
confirms the English common law carried over to NZ
91
what year was the English Laws Act enacted?
1858
92
Under the English _____ Doctrine, ___-________ local customs and laws continued. meaning that the common law's arrival did not displace _______.
Under the English Legal Doctrine, pre-existing local customs and laws continued. meaning that the common law's arrival did not displace Tikanga.
93
When the Crown came to NZ, it became the ultimate _____ __ all the ____. other people could hold it, but the ultimate owner was the Crown. however, the Doctrine of Customary Native __________ meant the Crown's ultimate ownership is subject to ownership by Maori under ___________.
When the Crown came to NZ, it became the ultimate owner of all the land. other people could hold it, but the ultimate owner was the Crown. however, the Doctrine of Customary Native Title meant the Crown's ultimate ownership is subject to ownership by Maori under Tikanga.
94
where did we inherit the common law method of decision making?
through England
95
Our common law is adapting to become unique to NZ e.g. _______ is beginning to influence our common law
Our common law is adapting to become unique to NZ e.g. Tikanga is beginning to influence our common law
96
what are wraps
the values that underpin the law e.g. good faith, honest dealing, fairness and reasonableness
97
what is weft
the individual judgements of judges which bring depth, colour and texture.
98
one role of the courts in our society is to resolve _____ ________ between parties, both civil and criminal
one role of the courts in our society is to resolve legal disputes between parties, both civil and criminal
99
4 ways the courts are different from other types of dispute reso- lution
1. you can take someone to court without them agreeing or wanti- ng to go to court. 2. the decision is based on the law. 3. the decision must be abided by. 4. courts have to make the same decision in the same way again and again.
100
courts decides cases based on the ____ of the case and __________ _______ of law (e.g. statues or common law)
courts decides cases based on the facts of the case and different sources of law (e.g. statues or common law)
101
2 societal purposes of law
1. resolve issues in a predictable and final way. 2. remain flexible enough to respond to future developments
102
the court is able to ___________ ______ decision making made by the executive branch of Government. this allows the judiciary to act as a _____ and _______ on the Government's exercise of power.
the court is able to judicially review decision making made by the executive branch of Government. this allows the judiciary to act as a check and balance on the Government's exercise of power.
103
the courts do not look at the __________ of any Govt decision or action, but rather check whether the ________ that led to this decision was ______.
the courts do not look at the substance of any Govt decision or action, but rather check whether the process that led to this decision was lawful.
104
In Fitzgerald v Muldoon, Muldoon announced that this Government was going to change the superannuation (retirement) fund under the New Zealand superannuation Act ____. it was found the
the judiciary that he had breached the Bill of Rights Act ____ which prohibits the ____________ of laws without the Parliament. although it did eventually get pushed through, once it had gone through the correct _____________ ________.
In Fitzgerald v Muldoon, Muldoon announced that this Government was going to change the superannuation (retirement) fund under the New Zealand superannuation Act 1974. it was found the the judiciary that he had breached the Bill of Rights Act 1688 which prohibits the suspension of laws without the Parliament. although it did eventually get pushed through, once it had gone through the correct legislative process.
105
the court _____ _____ use judicial review to overturn or ______ to follow a statute.
the court cannot use judicial review to overturn or refuse to follow a statute.
106
once enacted, the meaning of a statute comes from the statutory _____________ of ______
once enacted, the meaning of a statute comes from the statutory interpretation of judges
107
Parliamentary supremacy means that the courts are required to apply the __________ of the _______ when it only allows for one _______ irrespective of their _________ views
Parliamentary supremacy means that the courts are required to apply the language of the statute when it only allows for one outcome irrespective of their personal views
108
1. if Parliament has drafted the statute in an ____________ way, the judge may have a choice of different meanings before them. in this way, the judge is effectively deciding exactly what Parliament "______" _____.
1. if Parliament has drafted the statute in an ambiguous way, the judge may have a choice of different meanings before them. in this way, the judge is effectively deciding exactly what Parliament "really" meant.
109
there is a very ____ ____ between "interpreting" and "______________" despite the courts proclaiming they do not do the latter. the court is an ______ __________ of enactments.
there is a very fine line between "interpreting" and "legislating" despite the courts proclaiming they do not do the latter. the court is an active interpret of enactments.
110
what is the declamatory theory? (traditionally)
the courts function of developing the common law was traditionally justified as the true law merely being discovered
111
there has began to be a greater _________________ of the __________ aspect of the judicial role.
there has began to be a greater acknowledgement of the creative aspect of the judicial role.
112
in theory, Parliament has always ___ ___ _______ to legislate over any creative judicial development - but there are areas where Parliament seems happy to leave judges free __ __________ how to proceed...think negligence, privacy areas of law et
in theory, Parliament has always had the power to legislate over any creative judicial development - but there are areas where Parliament seems happy to leave judges free to decide how to proceed...think negligence, privacy areas of law etc
113
Parker v British Airways Board 1982 wrote about the reality of judges rights (…ready made solution…legal technicians…reality…right and duty…)
"As a matter of legal theory, the common law has a ready-made solution for every problem and it is only for the judges, as legal technicians to find it. there reality is somewhat different... we there- fore have both the right and duty to extend and adapt the common law in light of established principles and the current needs of the community.”
114
"As a matter of legal theory, the common law has a ready-______ ___________ for every problem and it is only for the judges,
as _______ _____________ to find it. there reality is somewhat different...wethereforehaveboththerightand____toextendand ________ the common law in light of established ____________ and the current needs of the ________________."
"As a matter of legal theory, the common law has a ready-made solution for every problem and it is only for the judges, as legal technicians to find it. there reality is somewhat different... we there- forehaveboththerightanddutytoextendandadaptthecommon law in light of established principles and the current needs of the community."
115
4 things that Donaldson LJ did in Parker v British Airways Board to help develop the common law
1. review and clarify general principles of Finders Law. 2. dis- tinguish previous cases. 3. apply and extend previous cases. 4. consider the social goods that the law ought to facilitate.
116
where did the idea of parliament originate from?
advisors to the King of England
117
During the Anglo-Saxon era, law technically came from the _____, but he took advice from the _________ around him. these advi- sors were known as the ____________________
During the Anglo-Saxon era, law technically came from the King, but he took advice from the nobles around him. these advisors were known as the Witenagemot
118
what were the traits of the Witenagemot?
they did not have fixed meeting or always meet at the same place, or any power over when they would meet. it was all dependent on the King.
119
The key distinguishing feature between the witenagemot and the Parliament we have today is that it was all dependent on the King ______, _______ and how _______ they meet.
The key distinguishing feature between the witenagemot and the Parliament we have today is that it was all dependent on the King when, where and how often they meet.
120
what were the Circular Regis?
a group of advisors existed during the time of William the Con- queror (from 1066 onwards).
121
what does the King's Council translate to in olden language?
The Circular Regis
122
what happened in 1215?
the Magna Carta
123
the Magna Carta introduced the principle that the King rules in __________________ with others. the King at the time (King John) wanted to regain _____ _______________ so he planned to raise ______ really high in order to gather a sufficient army and weaponry for success. when the taxes were imposed on nobility, they rebelled, and as a result the King decided to reach an _______________ with the rebels - the _______ _______
the Magna Carta introduced the principle that the King rules in consolation with others. the King at the time (King John) wanted to regain lost territories so he planned to raise taxes really high in order to gather a sufficient army and weaponry for success. when the taxes were imposed on nobility, they rebelled, and as a result the King decided to reach an agreement with the rebels - the Magna Carta
124
when did Parliament begin to emerge? (century)
13th century
125
during the __th century, Parliament (a genuinely representa-
tive body containing both _________ and __________________) emerged as an entity
during the 13th century, Parliament (a genuinely representative body containing both nobles and commoners) emerged as an entity
126
what Parliament took place from 1264-1265?
De Montford's Parliament
127
De ______________ waged war against the ______ and won. after winning, he established a __________________ with both nobles and commoners. this was quite shocking at the time, especially for nobles who had to share _______ __________ with commoners.
De Montfort waged war against the King and won. after winning, he established a Parliament with both nobles and commoners. this was quite shocking at the time, especially for nobles who had to share their power with commoners.
128
what happened to De Montfort after he introduced a Parliament with nobles and commoners?
he lost the support of the nobles and was killed
129
what Parliament was introduced in 1295?
King Edward's Model Parliament - became the "model" for all Parliaments that followed
130
.King Edward decides to implement some of De ____________ ideas. he gave the commoners in Parliament more power (both the commoners + nobles were to __________ ____________ legislation separately AND _____ house(s) had to agree to that legislation for it to pass).
King Edward decides to implement some of De Montfort's ideas. he gave the commoners in Parliament more power (both the com- moners + nobles were to debate proposed legislation separately AND both houses had to agree to that legislation for it to pass)
131
King Edward gave Parliament more power as a _______ (no taxes were to be imposed without the _________ of Parliament).
King Edward gave Parliament more power as a whole (no taxes were to be imposed without the consent of Parliament).
132
what century was there power struggles between King and Parliament?
17th century
133
when did Parliamentarians and the King's army go to war?
1642-1651
134
Parliament tried to constrain King Charles I with the Petition of ________ ______, which led to Charles _____________ Parlia- ment in 1629 and ruling alone for ___ years.
Parliament tried to constrain King Charles I with the Petition of Rights 1628, which led to Charles dissolving Parliament in 1629 and ruling alone for 11 years.
135
In ______, Parliament appointed its own monarch - William of _________ and his wife _____. they made them accept certain principles in the _____ ___ _______ in 1688/1689, because Parliament was conscious of the fact that the monarch tended to break rules and _____________ Parliament when they got into power.
In 1689, Parliament appointed its own monarch - William of Or- ange and his wife Mary. they made them accept certain princi- ples in the Bill of Rights in 1688/1689, because Parliament was conscious of the fact that the monarch tended to break rules and dissolve Parliament when they got into power.
136
why did the Parliament require William of Orange and Mary to accept certain principles in the Bill of Rights 1688/1689?
because Parliament was conscious of the fact that the monarch tended to break rules and dissolve Parliament when they got into power.
137
what were the 3 certain principles that William of Orange and Mary had to accept?
1. free speech for members of Parliament when in Parliament. 2. that Parliament must meet frequently. 3. that the pretended power of suspending of laws, or the execution of laws by regal authority without the consent of Parliament is illegal.
138
The 3 certain principles that William of Orange and Mary had to accept: 1. ______ ________ for members of Parliament when
in Parliament. 2. that Parliament must _______ frequently. 3.
that the pretended power of _________________ of laws, or
the ______________ of laws by regal authority without the __________ of Parliament is illegal. the effect of this was that Parliament was now the one __________ _______, not the King!
The 3 certain principles that William of Orange and Mary had
to accept: 1. free speech for members of Parliament when in Parliament. 2. that Parliament must meet frequently. 3. that the pretended power of suspending of laws, or the execution of laws by regal authority without the consent of Parliament is illegal. the effect of this was that Parliament was now the one making laws, not the King!
139
Parliament is now ____________, and the King's power has withered away.
Parliament is now supreme, and the King's power has withered away.
140
how was parliament introduced to NZ?
through a series of Acts and other legal instruments
141
what year did England enact the constitution act?
1852
142
what did the Constitution Act 1852 set up?
the general assembly
143
the General Assembly was an ____________ _______, reflect- ing "responsible Govt" with the "________ to make laws for the peace, order and good Govt of NZ", but the laws could not
be "______________ to the laws of England". it was a body that made laws but with certain conditions - it was not yet fully ________________
elected body, power, repugnant, autonomous
144
when did the English Parliament enact the Statute of Westminster Act?
1931
145
What did the Statute of Westminster Act entitle NZ?
NZ was allowed to become self governing
146
when did NZ become self Governing?
1947
147
what enactment did NZ create to become self governing?
the Statute of Westminster Adoption Act 1947
148
when was NZ allowed to amend the Constitution Act of 1852?
1947
149
When did NZ actually ament the Constitution Act 1852?
1986
150
It took time before NZ was ready to ________ away from the influence of the English Parliament. But, eventually, we moved to have a full, Au______________ (and supreme) Parliament. Today's Parliament can (theoretically) ______ any law it likes.
break away, autonomous, pass
151
what members make up Parliament today?
Governor-General, House of Representatives (MPs), ceremonial head of state, PM, A Cabinet of responsible ministers, and a representative democratically elected legislature/executive.
152
3 institutions of our legal system that are the same as England
1. lawmaking by an elected legislature. 2. trial by jury in courts. 3. precedent-based decision making through the court
153
7 things that make our legal system unique due to our context from England
1. no separate court of equity. 2. parliament is supreme (from 1986). 3. waitangi tribunal - to investigate breaches of Te Tiriti. 4. drawing on Tikanga Mãori. 5. a uni-cameral system (one house in Parliament). 6. no distinction between barrister/solicitor. 7. unique legislation e.g. ACC system (reduced tort law in NZ)
154
7 things that make our legal system unique due to our context from England: 1. no separate court of equity. 2. parliament
is ___________ (from 1986). 3. waitangi tribunal - to investi- gate breaches of ___ _______. 4. drawing on ________ Mãori. 5. a ___-_________ system (one house in Parliament). 6. no ___________ between barrister/solicitor. 7. unique legislation e.g. ACC system (reduced tort law in NZ)
supreme, Te Tiriti, Tikanga, uni-cameral, distinction.
155
Parliament shapes our ______________ and political system - legislation is ___________________
economic, everywhere
156
4 reasons why lawmaking through Parliament is a democratic process
1. the creation and scrutiny of bills are done by people who the public has voted to be their representatives. 2. MPs can be debated in English, sign language and Te Reo Maori. 3. Multiple debates occur - enabling close scrutiny. 4. anyone can make written or oral submissions to the Select Committee to get their view heard.
157
what is wrong with urgency?
goes through all stages of legislation in one day - no select committee process so no public input.
158
Parliament has the "full _______ to make laws" (Constitution Act _____, s 2)
power, 1986
159
Our core rights are found in NZBORA ______, and as per s _ of NZBORA, the courts cannot refuse to apply legislation even if it is ______________________ with one of these fundamental rights. therefore Parliament _______ infringe on our rights
1990, 4, inconsistent, can
160
what does s 4 of NZBORA say?
the courts cannot refuse to apply legislation even if it is inconsis- tent with one of our fundamental rights.
161
Parliament constrained electoral rights under s __ of NZBORA by enacting the E___________ A_______________ Act which disqualified prisoners from voting
12, Electoral Amendment
162
one of the functions of the _____________-General is to tell Parliament when Bills they are proposing are ___________________ with one of our fundamental rights. but, Parliament can still choose to pass the legislation _________ making any changes, if they want to
Attorney, inconsistent, without
163
The _________ to which Parliament can infringe on our rights is somewhat in question because Parliament is yet to attempt to pass a law that ________________ an extremely fundamental right (e.g. the right to be free from torture)
extent, constrains
164
if rights-infringing legislation is ________________ by a court, the court might make a declaration of __________________.
examined, inconsistency
165
what would happen if the court declined to apply legislation they declared inconsistent with NZBORA?
it would cause major constitutional; upheaval
166
Cook J: "some common law rights presumably lie so deep that even __________________ could not override them." - there are some common law rights that are so _____________________ that if Parliament were to override them, the courts ___________ refuse to apply that legislation
parliament, fundamental, should
167
what does Cook J mean when he says this: "some common law rights presumably lie so deep that even Parliament could not override them."
there are some common law rights that are so fundamental that if Parliament were to override them, the courts SHOULD refuse to apply that legislation
168
Parliament can only constrain itself by __________________ to say that its laws can only be amended by a "special _____________".
legislating, Majority
169
Entrenched provisions are reserved "for significant ___________________ matters outside the scope of ___________ policy debate"
constitutional, general
170
what did the Doctrine of Native Title specify
specifically, traditional law, customs and land ownership/rights followed by the Indigenous people of the country prior to colonisation must still be recognised under common law thinking as part of Tikanga
171
what is Tikanga
a set of concepts, values and principles
172
what did the Doctrine of Native Title mean in regards to possible Maori property rights?
it is possible that pre-existing Maori property rights are to be legally recognised by our legal system, allowing them to be the lawful owner of the land. however, almost all Maori property rights have been extinguished by legislation
173
when was the English Laws Act enacted?
1858
174
what did the English Laws Act announce?
formally declaring common law the main source of law in NZ
175
Since 1840, the Crown claimed full ownership of land almost everywhere habitable in NZ, under a concept called ___________.
Dominion
176
what did Dominion state?
Dominion stated that legally when the Crown asserted sovereignty, they became the full and only owner of the land. the concept of Dominion, according to the Doctrine of Native Title, is subject to the pre-existing Tikanga.
177
Dominion stated that legally, when the Crown asserted _______________, they became the full and _____ ____________ of the land. the concept of Dominion, according the the Doctrine of Native Title, is subject to the ____-____________ _____________.
sovereignty, only owner, pre-existing Tikanga.
178
legislation is more or less than common law principles
more
179
in 2004, it was discovered that the law is _____________ on if the FS/SB land area had been extinguished by legislation. if it had: no more Maori rights could be claimed. if it hadn't: ______________ ____ principles tell us that Tikanga rights in the FS/SB should continue to exist, even though the _________ is the owner per dominion. the law is unclear!
unclear, common law, Crown
180
the ________ Land Court is established for the sole purpose and jurisdiction of facilitating ________________, management and _________________ of Maori land and its rights.
Maori, retention, protection
181
The Maori Land Court, after hearing Ngati Apa's case, says it has the _____________, ______________ and jurisdiction to receive evidence e.g. how long they've lived there, how long they have used the FS/FB in that time and if this _________________ establishes that their rights do exist.
capacity, authority, evidence
182
if Maori did have potential rights in the FS/SB, it would give them a firmer ________ _________________ - one step closer to a more equal and just society where ______________ rights are actively acknowledged and accepted.
legal foothold, Tikanga
183
rights that can be recognised by the courts are ________________.
powerful
184
what did the High Court declare in the Ngati Apa case?
When the British crown acquired sovereignty of NZ, it acquired full, unburdened ownership of the foreshore which was then passed to the NZ crown, and the seabed had always been owned by the crown and any rights that survived were extinguished by legislation dealing with adjacent dry land.
185
what did the Court of Appeal declare in the Ngati Apa case? and what did they acknowledge?
property rights endure unless they have been clearly stated by legislation...which no NZ Parliament has done (yet). they acknowledged that the common law arrived in NZ when the Crown acquired sovereignty, but this did not extinguish their rights.
186
the Court of Appeal's decision declares that the MLC _______ have the capacity to hear claims about Maori property rights and asses them on a ______-by-______ basis. the ability to appeal = highly important in our _______ system
does, case-by-case, legal system
187
the Appeal System allows for __________ courts to review, and if necessary, override decisions made by the ____________ courts. it promotes trust, public _________________ in the judicial system - important that parties have an ________________ to challenge decisions they think are unfair/improper and that the maximum amount of courts + judgements have run their eye over it, which is especially important when dealing with any sort of _________.
senior, lower courts confidence, opportunity, rights.
188
why is the Appeal system important?
Allows for senior courts to review, and if necessary, override decisions made by the lower courts. it promotes trust, public confidence in the judicial system - important that parties have an opportunity to challenge decisions they think are unfair/improper and that the maximum amount of courts + judgements have run their eye over it, which is especially important when dealing with any sort of rights.
189
The Government drafts a policy to clarify and amend their legal authority over the FS/SB which, once legislated, will ___________ all previous _______________ _____ principles recognising _____________ rights.
replace, common law, Tikanga
190
the _______________ ___________ declared that the policy that the Govt was drafting up to replace all previous common law principles recognising Tikanga rights was ___________________ with the treaty of waitangi, as well as 2 courts saying there are potential rights.
Waitangi Tribunal, inconsistent
191
s 2 of T o W: "full, exclusive, undisturbed __________________ of their lands."
possession
192
The policy the Government is drafting to clarify and amend their legal authority over the FS/SB removes ___________________ of the courts to determine Maori property __________ and re- places it with fewer regimes.
jurisdiction, right
193
is the Waitangi Tribunal decisions binding?
no - they just make recommendations
194
who left the Labour Party after the Foreshore and Seabed Act 2004 was passed?
Turia Mahuta left and set up Te Pati Maori (the Maori party)
195
what is a coalition of Government?
2 or more combined parties to form Government. not all members have to vote in favour of passing a Bill - this is the power of Government within Parliament being somewhat constrained
196
what did the Marine and Coastal Act 2011 say?
no one owns the FS/SB and Maori could pursue claims to get customary title
197
what party that led Government enacted the Marine and Coastal Act 2011?
National-Maori coalition party
198
3 things the FS/SB Case study can be used as an example for
1. the importance of the appeal system.
2. Parliamentary supremacy.
3. the power of the Govt in Parliament - but also how the Govt needs to keep MPs on their side
199
what is the doctrine of precedent built on?
the idea that some courts are higher than others.
200
what courts decide, state the law and decide the legal outcomes of cases?
SC, COA, HC, DC
201
The decisions of higher courts should have greater legal _________ than the decisions of the lower courts
Weight
202
_________ courts can review, and if necessary, _______________ decisions of the __________ courts
higher courts, overturn, lower courts
203
4 reasons why the courts are set up in a hierarchical structure?
1. provides for a system of appeals.
2. the relative importance of different cases.
3. refinement of legal issues and changing the law.
4. it is fundamental to the Doctrine of Precedent.
204
Judges in court are human beings and are susceptible to making ______________ just like everyone else. some judges hold fun- damentally different ________ from other judges.
mistakes, views
205
what can and cannot you do if you think the judge decided your case incorrectly?
you cannot ignore the courts decision and not abide by it, but you can appeal the decision to a higher court for possible correction.
206
some cases are considered worthy of greater or more intensive _______________ __________ than others.
judicial scrutiny
207
how are criminal cases decided which court to go to?
the seriousness of the offence and the potential punishment
208
how are civil cases decided which court to go to?
the complexity of the issue and the amount of money (or signifi- cance of other remedy) at stake
209
how are administrative cases decided which court to go to?
how significant the Governmental decision or action that is being challenged.
210
the more important the case, the __________ the court the trial is at.
higher
211
why are specialist courts good?
the more appropriately trained people are dealing with the particular cases.
212
what are 3 specialist courts?
employment, youth, family court, eviromental
213
when cases are ________________, they are not full reruns of the original trials - the case gets distilled down to its most __________________ issues. this allows for the higher courts to focus more closely on such issues and _______________ how best they should be resolved.
appealed, contentious, consider
214
what do the courts do when they cannot resolve an issue that's been appealed?
Judges find that the existing legal rules do not work and may result in the court changing the law. (interpret differently)
215
the hierarchal structure of the courts is ______________ to the idea of precedent = like cases should be treated ________. this helps to promote ________________ in decision making.
Central, alike, consistency
216
what are 2 things that a case actually decides?
1. a determinative outcome to the parties.
2. sets out a wider legal rule for the future
217
What is ratio decidendi?
the core legal rule/principle/standard that emerges from a case, which can then be applied to future cases of a sufficiently similar nature
218
Ratio decendi is the core legal rule/_____________/standard that ____________ from a case, which can then be applied to future cases of a sufficiently ___________ nature
principle, emerges, similar
219
the ratio of a case is decided _______ that case had been issued
once
220
judges will _________ explicitly state the ratio of their case. rather, the ratio of the case is determined by the ____________________ of what a subsequent judge makes of the previous decision
rarely, interpretation
221
what is obiter dicta?
observations or extra comments made by the court during the judgment
222
obiter dicta is observations or extra comments made by the court during ____________________. obiter comments are those not fixed on the exact ________ of the case in front of the judge, or the exact legal issue.
judgements, facts
223
ratio _______, obiter (may) ______________.
ratio binds, obiter (may) persuade.
224
what is the doctrine of precedent?
the principle that like cases ought to be decided alike.
225
how is a case "alike"?
if it has sufficiently similar facts which may make it a sufficiently similar case, especially material facts
226
what is vertical stare decisis?
lower courts are bound by the decision of a higher court, on a case with sufficiently similar facts.
227
____________ stare decisis is one of the main reasons why we have judicial ___________________
vertical, hierarchy
228
It is assumed that the law determined by the ____________ courts is more likely to be "right" because they have __________ legal minds addressing more _____________ legal issues.
higher, better, refined
229
the SC is bound by __________________ (through statutes) and binds all other courts.
parliament
230
the COA is bound by Parliament (through statutes) and the SC and binds the ___ and ___
HC, DC
231
the HC is bound by Parliament (through statutes), ____ and the COA and binds the DC
SC
232
the DC is bound by _______________ (through statutes), SC, COA and the HC
Parliament
233
When a court is bound by previous decisions of the SC, does this also include pre-2004 decisions of the Privy Council on NZ cases?
Yes
234
what 2 things can a lower court do if they do not want to apply the rule adopted by the higher courts?
1. define the ratio of the prior precedent in a narrow way so as to exclude the case in front of them (e.g. confine the previous decision to the specific facts.
2. distinguish the case in front of them from the precedent based on the facts to make it a not "like" case so the doctrine does not need to be applied.
235
the ratio of a case is usually not explicitly stated by the judge in their judgement - future judges have to ______________ for themselves what the ratio of a give case may be. so the ratio can be _________ and _____________ depending on who is interpreting it.
interpret, broad, narrow
236
the Doctrine of Precedent _____________ apply where the previous case is not "______" the case in front of the judge. if the judge distinguishes the cases (says they're not alike) then the ratio of the previous case does not have to be _____________ to the present one. must be a ______________ fact!
does not, like, applied, material
237
the flexibility of whether or not the courts apply rules adopted by the higher courts enables the court to decide the case in front of them according to what it believes are the needs of the _________________ _______, whilst at the same time remaining _________________ with the doctrine of ___________________.
Particular Case, consistent, precedent
238
what is horizontal stare decisis?
judges are not bound to follow the previous decisions of courts at the same level. however previous decisions of the same court are highly persuasive.
239
the SC and COA take a ______________ approach towards departing from their earlier precedent, they will only depart from prior precedent in compelling ___________________.
cautious, circumstances
240
why do courts not depart from previous cases easily?
adherence to past decisions promotes certainty and stability of the law. if a court constantly reviews its earlier decisions, more people will take their cases to court in the hope that their case will be a time for change. inconsistent application of the law would cause public respect for the law to decline.
241
if a court constantly reviews its earlier decisions, more people will take their cases to court in the hope that their case will be a time for ___________. inconsistent application of the law would cause public respect for the law to ____________.
change, decline
242
any change or development in the law reflects an assessment that doing so ________________ the importance of ______________ and predictability in our legal system.
outweighs, certainty
243
R v Clinton: COA stated it is "_________________ bound by its earlier decisions but that it will, in rare cases, be prepared to review and affirm, modify or _______________ an earlier decision."
ordinarily, override
244
what did R v Clinton say about the COA in regards to when the COA would depart from previous cases?
R v Clinton: the COA stated "it has resisted outlining in detail the circumstances in which it will depart from previous decisions, but it is clear that the approach will be cautious because of the need for certainty and stability in the law."
245
Couch v Attorney-General Elias CJ: "it is open to [the Supreme Court] to ___________ from a decision on its own...if it is right to do so because the rigid adherence to precedent would lead to an _______________ in the particular case or would unduly restrict the proper _________________ of the law to meet the needs of NZ society. that could be the case where the Court took the view that an earlier decision is wrong or has become wrong."
depart, injustice, development
246
why do the Higher Appellate Courts take a more cautious ap- proach (than HC and DC) in departing from prior precedents?
those whose cases are heard in the HC and DC have a right to appeal. it is much more difficult to appeal a case to the COA, and SC. SC is our highest court so you cannot appeal further...might as well try to get Parliament to change legislation.
247
5 reasons that would justify departure from a prior precedent in the COA or SC:
1. if the earlier decision failed to consider a binding authority or relevant statute and this failure affected the judgement (think Ngati Apa - the COA departed from the prior precedent of the Nine- ty-Mile beach case because it has failed to apply the decision of Baker).
2. if the earlier decision has been overtaken by a significant social change.
3. the age of the earlier precedent.
4. the number of judges that decided the prior case (more likely to depart if the decision of 1 judge vs 5).
5. if it was a Privy Council decision.
248
why might the SC be more inclined to depart from Privy Council decisions?
because when there were the Privy Council, there was limited availability to appeal to it, and the fact that the court was not unique to NZ's circumstances maybe be a reason to depart.
249
we can never truly know when the COA and SC may decide to depart from its earlier ________________. all we know is that they will be _____________ when they do so.
precedent, cautious
250
when more than one ________ is deciding a case, disagree- ment and differences of opinion can and do arise. judges are ____________ to disagree with each other, both to the outcome and to the _________________.
Judge, allowed, reasoning
251
what is the meta rule?
the decision of a majority of judges forms the decision of the court
252
how many judges in the COA make a majority?
2/3
253
how many judges in the SC make a majority?
3/5
254
what do dissenting judges (the minority of a case decision) do to note why they disagree and why?
they issue a judgement noting why they disagree. these judges have the value of laying down a possible path for the law in the future if an appellate court decides the original decision was wrong
255
there can be disagreements within a majority. for example, a judge may agree with the _______________, but not with how the outcome was _______________ compared to the other majority judges judgements.
outcome, reached
256
what judgement is issued when there are multiple different judgements for how an outcome was reached?
a concurring judgement that explains why they agree wit the outcome by outlines their alternative reasoning to get to that conclusion.
257
usually, over time, one judge's judgement is came to be ________________ over the other by other judges.
preferred
258
3 rules for split judgement decisions
1. if you can find a majority agreement on a legal approach, then that is the ruling of the court.
2. if you can find some facts that a majority agree are material, then the presence or absence of these facts will be material in future cases.
3. if this does not work and the common agreement between the judgements are so minimal as to be useless, then you are free for what you think is the best judgement.
259
If you can find a majority agreement on a legal approach, then that is the ruling of the court. if you can find some facts that a majority agree are ______________, then the presence or absence of these facts will be ______________ in future cases. if this does not work and the common agreement between the judgements are so ________________ as to be useless, then you are free for what you think is the best judgement.
Material, Material, Minimal
260
key point: multiple judgements can create __________________ in the law, but also provide _________ for legal argument and development of the law over time.
Uncertainty, Scope
261
pre 2004, who was the highest judicial body?
the privy council
262
what happened to previous privy council decisions once it was replaced by the SC?
it remained binding precedent to all courts lower than the SC. SC is not bound by PC decisions for the same reasons why the COA and SC are hesitant to depart from their own previous reasons
263
decisions of foreign courts are NEVER ______________ on NZ courts. these decisions, may be _________________
BINDING, Persuasive
264
what is overseas precedent decided on how persuasive they will be?
how similar that country's legal system is to ours, how similar their culture and social attitudes are to ours and how convincing the decision is
265
why do we follow the doctrine of precedent? (5 reasons)
1. it promotes certainty and predictability of the law.
2. it promotes just and fair outcomes because similar cases are decided in a similar way.
3. it makes the law more than just the whim of the individual judge hearing the case and thus the decision is fairer.
4. it contributes to the actual and perceived integrity of the judicial process. 5. it makes the court processes efficient (reducing cost + length of trials etc)
266
Why we follow the doctrine of precedent (5 reasons)
1: it pro- motes certainty and _____________________ of the law. 2. promotes just and fair outcomes because _____________ cases are decided in a similar way. 3. it makes the law more than just the whim of the individual judge hearing the case and thus the decision is _________. 4. it contributes to the actual and perceived ______________ of the judicial process. 5. it makes the court processes ______________ (reducing cost + length of trials etc)
Predictability, Similar, Fairer, Integrity, Efficient
267
the doctrine of precedent is not the be-all-end-all and provides for some _________________. there is scope to depart from the precedent when necessary to meet social __________.
Flexibility, needs
