A Part 1 - Mack Flashcards
3 Key Points of Parliament
- 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.
Who can declare an Act of Parliament invalid?
Parliament, no one else
Is there any express limit on what Parliament can or cannot legislate on?
No express limit
What prevents Parliament from making legislation?
Nothing, but there is political, public pressure and matters of morality
What does NZBORA S 4 say?
Courts cannot refuse to apply an Act of Parliament
6 Things that limit Parliamentary Supremacy?
- 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.
3 brances of NZ Govt?
- Legislature. 2. Executive. 3. Judiciary
why is the separation of powers incomplete?
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.
why is the power division between branches not equal?
because Parliament is supreme
what does the ROL mean
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.
why must the law be certain and clear?
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!!
what is the role of the judge?
interpreting and applying the law
what is crucial that the judges remains as?
Independent from other bodies in order to properly uphold the law
who was the first known “lawyer”?
Marcus Tullius Cicero
what happened in 1841-1856?
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
when was the first Roll of Barristers and Solicitors admitted to practice opened in Auckland?
1842
what Act allowed for a divided profession (barristers + solicitors), but it was not exercised?
Law Practitioners act 1861
what do you need in NZ to be a “lawyer”?
a licscened practicing certificate
what is the Act that sets out the ethical rules + duties, including a duty in court, of a lawyer?
Lawyers and Conveyances Act 2008
what do lawyers stand between?
the individual and justice/access to law
who can lawyers NOT refuse?
clients whose views they disagree with e.g. neo nazi client and a jewish lawyer
13.1 of the Lawyers and Conveyances Act 2008? :A lawyer has an absolute duty of…”
“A lawyer has an absolute duty of honesty to the courts and must not mislead/deceive the court”
what is the Cab Rank Rule?
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
what does a barrister do?
advocate, appears in court, “trial lawyers”
what does a soliticor do?
soliciates information from clients, advises clients and barristers; does NOT go to court
what is most of the work that lawyers actually do instead of going to court?
negotiating settlements as it avoids expenses + uncertainty of trial
transactional + people law?
transactions for people, small businesses (wills, family trusts, real estate)
transactional + big law?
transactions for corporations (mergers, acquisitions or intellectual property etc)
conflict and dispute resolution + people law?
Resolving conflict for people (family law disputes, argument with neighbour, criminal law)
Conflict and dispute resolution + big law
dispute resolution for corporates
what percent of people in 2020 actually like lawyers?
43%
who is infront of lawyers in least trusted professions?
council workers, journalists
lawyers as “liars”?
manipulating the truth to benefit their client
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)
Lawyers as “obstructing justice”?
using loopholes to benefit their client
what is legislature commonly known as?
the Parliament
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
what happened if the majority of MPs vote in favour (50% or more)of a Bill?
it will become an Act
what is a Bill?
draft legislation
what is an Act per s 16 of…
bill that has been passed into law as per s 16 of the Constitution Act 1986
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
2 key points about Parliament?
- 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
Relationship between Parliament and the Govt of the day (3 points)
- Parliament is elected every 3 years in the general election.
- the party/parites that hold a majority of seats in Parliament come together to form the Government (of the day).
- the majority parties’ members (MPs) then become ministers who lead the Govt.
FACT: Govt formulates policy…
…Parliament makes legislation
Constitution Act 1986 s 6? All ministers of the Crown must also be…
All ministers of the Crown must also be members of Parliament
Constitution Act 1986 s 14? Parliament consists of the…
parliament consists of the Sovereign (Governor-General) in right of NZ and House of Representatives
Constitution Act 1986 s 10?
the House of Representatives is made up of elected members of Parliament
Constitution Act 1986 s 17? Parliament has a term…
Parliament has a term of 3 years
Who leads the Executive?
Govt ministers who precide over the different Govt agencies
ross over of legislation and executive?
all ministers have to be MPs
how does the Executive “executes” the laws created by Parliament
- it puts them into effect + makes sure they are working well
what do Ministers do?
design policies and put them before Parliament
what do the courts do?
courts create common law by resolving disputes brought before them
judgements issued by the courts =
case/common law
how do the judges hold the Government to account?
by scrutinising Govt action (“judicial review”)
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
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
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.”
Courts help to…
Constrain Parliament power
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
2 levels of judicial independence
- at the level of the institution of the Judiciary as a whole. 2. at the level of the individual judges
5 ways judicial independence is maintained
- all judges are to take a judicial oath before their appointment as a judge as per s 18, Oaths and Declarations Act 1957.
- 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.
- salaries are set by an independent entity (the remuneration authority)
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 ______.
- 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.
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
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
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.
What law operated in England when Rome conquered England?
Roman Law 43-426 AD
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
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.
What law was used in France in 1066?
Roman Civil Law
when did William the Conqueror arrive in England?
1066
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.
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”
when did Henry II rule?
1154-1189
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.
2 features that Henry ingrained in our legal system that persist in our legal system today:
- the writ system. 2. trial by jury
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.
did Henry II come up with trial by jury?
no, he systematised. it- it was already being used.
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.
what was introduced to address the lack of flexibility in the law
a distinct body of law known as “equity”
where was equity dealt with?
a specialist court known as the court of chancery
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.?
what happened on the 6th february 1840
te tiriti signed
what happened on the 21st may 1840
proclamation of sovereignty by William Hobson
what happened on the 3rd may 1841
NZ was proclaimed a colony
when was the Supreme Court (now High Court) established?
1841
when was the Magistrates Courts established?
1846
when was the Court of Appeal established?
1862
English common law ________ said that the English settlers took their ___ ___ with them when settling new countries.
the English thought it was valuable to bring the common law to their colonised countries…“Common Law is England’s gift to the legal world” - Grant Morris (Law Alive)
What did the English Laws Act declare
confirms the English common law carried over to NZ
what year was the English Laws Act enacted?
1858
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.
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.
where did we inherit the common law method of decision making?
through England
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
what are wraps
the values that underpin the law e.g. good faith, honest dealing, fairness and reasonableness
what is weft
the individual judgements of judges which bring depth, colour and texture.
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
4 ways the courts are different from other types of dispute reso- lution
- 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.
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)
2 societal purposes of law
- resolve issues in a predictable and final way. 2. remain flexible enough to respond to future developments
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.
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.
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.
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.
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
