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LAWS110 > Constitutional Law (week 10, Starting 15th May) > Flashcards

Constitutional Law (week 10, Starting 15th May) Flashcards

1
Q

What is a constitution?

A

A framework of fundamental principles under which a nation is established and governed.

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2
Q

Three main branches of government?

A

Parliament
The Executive
The Courts

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3
Q

What are the three elements the constitution is concerned with?

A

How power of state is exercised.
Relationship between government and its citizens.
National identity.

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4
Q

The constitution is uncodified. True or False?

A

True. While written, not all in one document.

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5
Q

What is considered by many to be founding constitutional document in NZ?

A

Te Tiriti (Treaty of Waitangi)

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6
Q

4 key principles of constitution?

A
  • Parliamentary Sovereignty
  • Rule of Law (everyone is equal under the law, government can only act under laws in place)
  • Democracy
  • Separation of powers (making sure no one of 3 branches of government becomes too powerful)
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7
Q

Statutes/Sources under constitution.

A

Constitution Act 1986
Public Financial Act 1989
NZ Bona 1990
Treaty of Waitangi Act 1975
Human Rights Act 1993
Electoral Act
Statute of Westminster
Consitutional conventions
Case law
Royal Prerogative

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8
Q

Does New Zealand have a constitutional monarchy?

A

Yes, however English monarchy has very little actual power in New Zealand.

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9
Q

What is “responsible government”?

A

Prime minister and minsters are responsible to parliament.

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10
Q

What is “representative government”?

A

Elected government, they represent our interests.

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11
Q

What is a unicameral system of government? Does New Zealand have this system?

A

Only one house in parliament = House of Representatives. New Zealand has this system.

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12
Q

What is a unitary system? Does New Zealand have this system?

A

Only one parliament for the entire country, delegated powers are to city councils. NZ has this system.

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13
Q

What does the “separation of powers” entail?

A

By separating public power into three branches of legislature (parliament), judiciary, and executive, no one branch has too much power as each will check the other branches to keep power balanced.

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14
Q

What is the “executive” branch? What do they do?

A

Known generally as the government. MMP system, labour, national, Prime Minister, etc.

Run the country in accordance with Parliaments laws.

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15
Q

What does parliment do?

A

Create law in form of statutes, acts, etc.

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16
Q

What does the judiciary do?

A

Interoperate statutes and create case law.

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17
Q

Does New Zealand have complete separation of power?

A

No, there is overlap between branches. E.g members of executives (MPs) are also members of parliament. Furthermore, judiciary have to follow statutes made by parliament thus not equal power.

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18
Q

What does “Parliamentary Sovereignty” entail?

A

Parliament can repeal their own statutes.
Parliament can pass any statute to override case law.
Parliament is supreme law making body, can pass any law it likes.

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19
Q

Can Governor-General stop parliament from passing any law they want?

A

Technically yes. Governor-general has a reserve power to refuse to sign a law. However never been exercised as it would be seen as trying to override elected government. Thus in reality no.

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20
Q

What is the main way of stopping Parliament from making any law they want?

A

Elections. Voting government out if don’t like the laws they have made.

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21
Q

What does the “Rule of Law” principle entail?

A

To protect citizens from unlawful actions of government.

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22
Q

How does the “Rule of Law” principle protect citizens?

A

Makes everyone, including government, equal in New Zealand.

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23
Q

What is the underlying principle of the constitution?

A

Democracy. Underpins all other principles.

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24
Q

What did Muldoon say in his press statement? - Fitzgerald v Muldoon

A

Muldoon issued in press statement that you don’t have to comply with Parliament law for early kiwi saver scheme.

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25
Q

What was Fitzgerald claim in Fitzgerald v Muldoon?

A

Paul Fitzgerald filed claim against Muldoon that he was violating Bill of Rights Act 1688 which stated that it is illegal to suspend Parliament made laws.

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26
Q

What did the Judge in Fitzgerald v Muldoon rule?

A
  • Press realise was illegal and breached section 1 of Bill of Rights.
  • However, as National had majority in Parliament the scheme would almost certainly be repealed and therefore the judge was not going to order for the running of the scheme to be put in place.
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27
Q

What did Fitzgerald v Muldoon recognise for the principles of the constitution?

A

Separation of powers - recognises that executive is separate from Parliament.

Parliamentary sovereignty - recognises that Parliament law is supreme.

Rule of Law - treats Fitzgerald and the Prime Minister, Muldoon, as equals.

Democracy - doesn’t keep running scheme as current government who has been voted in to change law will most likely follow through.

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28
Q

What are the 7 main sources of the NZ constitution?

A

Te Tiriti
Legislation
Prerogative instruments
Consitutional conventions
Common law
Parliamentary and executive rules and procedures
International law

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29
Q

What happened in 1984?

A

Snap election occurred. Labour wins election. Muldoon (national) remained as PM until formal result came in.

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30
Q

What does the Caretaker Convention say?

A

Outgoing prime minister must follow incoming prime minster’s instruction.

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31
Q

Did Muldoon follow the caretaker convention? What happened?

A

No. He did not de-value the NZD straight away until pressure from his own party made him.

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32
Q

What did the events of Muldoon and 1984 lead to?

A

Review of NZ Constitutional Law. Lead to the creation of “The Constitution Act 1986”.

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33
Q

What does part 1 of The Constitution Act 1986 outline?

A

Head of state = British monarch.
Governor-General represent monarch in NZ. Prime Minster recommends Governor-General appointment to monarch.
Demise of crown - when monarch dies their rights and powers will be passed down to their successor.

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34
Q

What does part 2 of The Constitution Act 1986 outline?

A

The executive:
- Executive Council member or Minister of the Crown must first be a member of Parliament.
- Person who is not member of Parliament may hold office of Executive Council member or Minister of the Crown if they were a candidate for election but must leave office if they do not become a member of Parliament within 4 day period.

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35
Q

Does section 6 of The Constitution Act 1986 allow new government to be sworn in before offical election results are in?

A

Yes. Stops 10-15 turnover period.

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36
Q

What does part 3 Constitution Act 1986 outline?

A

Legislature

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37
Q

What does s14 Constitution Act 1986 outline?

A

Parliament exists. Consists of Governor-General (sovereign) and House of Representatives.

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38
Q

What does s17 Consitutional Act 1986b outline?

A

Term of Parliament is 3 years.

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39
Q

What does part 4 Constitution Act 1986?

A

Judiciary:
S23 - Judges not to be removed from office unless by Governor-General acting upon instructions of House of Representatives.
S24 - Judges salaries are protected.

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40
Q

Why is The Constitution Act 1986 not regarded as New Zealand’s codified constitution?

A
  • Doesn’t include the people of NZ in Act.
  • Doesn’t say that constitution is supreme over all other legislation.
  • Parliament is supreme not constitution.
  • No human rights or Te Tiriti in Act.
  • Nothing about national identity or fundamental values of the people.
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41
Q

Legislation for three branches

A
  • Public Service Act 2020
  • District Court Act 2016
  • Senior Courts Act 2016
  • The Electoral Act 1993
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42
Q

What does S268 of Electoral Act 1993 outline?

A

Restriction of amendment or repeal of certain provisions:
- term of parliament
- qualification of voting rights in NZ
- method of voting as prescribed section 168

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43
Q

What is the majority percentage of Parliament to amend elements protected under s268 Electoral Act 1993?

A

75% majority of all members of Parliament.

Or

Majority of valid votes cast at a poll of the electors of the General and Maori electoral districts.

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44
Q

Can Parliament repeal the actual provision of S268 of the Electrical Act 1993?

A

Yes they can. This is done to keep complete Parliamentary sovereignty.

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45
Q

What does the Ombudsmen Act 1975 allow for?

A

Can investigate what government did if there is concern. E.g investigating whether government didn’t pay a benefit to an individual.

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46
Q

Other constitutional legislation?

A

Ombudsmen Act 1975
Flags, Emblems & Names Protection Act 1981
Offical Information Act 1982
Public Finance Act 1989
New Zealand Bill of Rights Act 1990
Human Rights Act 1993; Privacy Act 2020
Citizens Initiated Referenda Act 1993 (e.g cannabis referendum)
Parliamentary Privilege Act 2014

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47
Q

Imperial Constitutional Legislation that still apply in NZ?

A

Magna Carta 1297 - relationship of crown to church, elements of law on individual rights, identifies concept to majority rule.
Petition of Right 1627 - No taxation without consent of Parliament.
Bill of Rights 1688 - Limiting powers of Crown and confirms Parliamentary Sovereignty.
Act of Settlement 1700 - succession of sovereign ruling Crown. (Amended in 2013)

All apply in virtue of the Imperial Laws Application Act 1988

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48
Q

What does the Letters Patent 1983 do?

A

Constitutes the office of the Governor-General.

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49
Q

What is Prerogative Powers?

A

The power the Crown (royals) have.

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50
Q

What does Clause 1 of Letters Patent 1983 do?

A

Constitutes officer of Governor-General and Commander-in-Chief over the Realm of New Zealand.

51
Q

What does Clause 3 Letters Patent 1983 do?

A

Outlines Governor-General’s powers and authorities.

52
Q

Clause 7-10 of Letters Patent 1983?

A

Covers Executive Council.

53
Q

Clause 16 Letters Patent 1983?

A

Minsters are the keep Governor-General informed.

54
Q

Clause 17 Letters Patent 1983

A

Minsters are to obey, aid and assist Governor-General

55
Q

Difference between Governor-General and Attoreny-General

A

Attorney-General minister of Crown and has real power, Governor-General sits above minsters but has no real power in reality.

56
Q

What is a constitutional convention?

A

Rules of political obligation that are distinguished from ordinary political usage as they evoke a sense of obligation and they serve a constitutional purpose.

Or

Customs, norms, or practices that are generally understood to be important to government and worth following.

57
Q

How is a constitutional convention enforced? Is there ways in which it cannot be enforced?

A

Cannot be enforced by the Courts (not judicable)

Can be enforced by expectations, social and political pressure.

58
Q

How are constitutional conventions amended?

A

Amended by practice. Evolve over time and change in social norms.

59
Q

Advantages of constitutional conventions?

A
  • Flexible, can evolve without statutory change from Parliament.
60
Q

Disadvantages of constitutional conventions?

A
  • Easily ignored and disregarded
  • Hard for those who do not understand law to understand the conventions
61
Q

Difference between legislature and executive?

A

Legislature = Parliament
Executive = Government, the Crown.

62
Q

Who heads the Executive?

A

Governor-General

63
Q

Who is the political head of the Executive?

A

Prime Minister

64
Q

What is Cabinet?

A

Political body to make major decisions for government about policy, choosing which bills to present to Parliament, etc. Consists of top 20 ministers.

65
Q

What are minsters?

A

Politicians, have their own responsibility e.g minster of finance.

66
Q

What is the Executive Council?

A

Made up of all ministers. Exists to essentially as a formal function where Governor-General signs off on necessary bills, decisions, etc.

67
Q

Who holds the most decision making power? Cabinet or the Executive Council?

A

Cabinet. Executive Council really only formality function rather than actual power.

68
Q

What are co-operation agreement Ministers?

A

Ministers of other parties that main political party is co-operating with. E.g Greens being co-operation agreement Ministers to Labour.

69
Q

Are the following included in the executive?:

  • Armed forces
  • Police
  • Government departments and public service
  • Local government
  • State owned enterprises and Crown entities
A

Yes. They are all an element of the executive.

70
Q

What are the 6 main functions of the Executive?

A
  • Executes and administers the law.
  • Implements and maintains the law.
  • Formulates policies and expenditure.
  • Administers government departments.
  • Negotiates and ratifies international treaties (represents NZ in international matters).
  • Proposes new legislation (bills) to Parliament.
71
Q

What is “unbridled (executive) power”?

A

The executive in reality has dominate power over the Parliament.

72
Q

What was changed to combat unbridled power?

A

Changed electoral system from First Past the Post to MMP system.

73
Q

Consequences of unbridled power?

A
  • Parliament became a “rubber stamp”, no proper scrutiny.
  • Separation of powers weakened.
  • “Executive paradise”, executive could more or less pass any laws they wanted.
  • Legislation passed very fast (too fast).
74
Q

What does the MMP electoral system stand for?

A

Mixed-member proportional representation.

75
Q

What Act changed the electoral system from FPP to MMP?

A

Electoral Act 1993.

76
Q

How does MMP electoral system work?

A

Two votes: electorate vote + party vote.
To be elected party needs 5% of party vote or electorate seat.
Seats distribution = 65 electoral seats, 7 Maori seats, 48 list seats.
% of party vote as long as elected criteria is met = % of total seats in Parliament party receives.

77
Q

What is “coat tailing”?

A

When a party does not meet the 5% party vote, however wins an electoral seat and therefore is entitled to however many % of the party vote they got.

Example:
ACT party vote = 3% and 1 electoral seat one.

ACT in turn gets 3% of total seats in Parliament, therefore adding listed MPs to their one elected MP to make up 3% of total Parliament seats.

78
Q

Who becomes government in MMP system?

A

Political party ore coalition of political parties with over half of Parliament’s seats.

79
Q

Has the MMP system increased the diversity of MPs?

A

Yes.

80
Q

Can MMP give too much power to smaller parties?

A

Yes, smaller parties can become king makers with a very small percentage of overall votes giving unweighted power to smaller parties.

81
Q

Difference between electorate MPs and List MPs?

A

List MPs on parties list to fulfil seats when balancing out Parliament seats in party votes.

Electorate MPs elected by the people to represent part in Parliament.

82
Q

Elements of Parliament?

A

Governor general + House of Representatives

83
Q

How many MPs are usually in the House of Representatives?

A

120 MPs (1 elected speaker)

84
Q

How many Parliamentary selected committees are there?

A

20

85
Q

What do select committees do?

A

Consider draft laws and suggest changes.

86
Q

Officers of Parliament?

A
  • Ombudsman (deals with complaints about legislature’s actions)
  • Auditor-General (overseas how public money is spent)
  • Parliamentary Commissioner for the Environment
87
Q

Functions of Legislature

A
  • Represents the people.
  • Provides a government.
  • Challenge and hold the government to account.
  • Approve how taxpayer’s money is spent (known as supply).
  • Law-making function.
88
Q

Is Parliamentary law the highest source of law?

A

Yes.

89
Q

Anyone can declare Parliament’s laws invalid. True or False?

A

False

90
Q

The judiciary via judicial review can overturn Parliament made laws. True or False?

A

False

91
Q

Can Parliament bind its successors?

A

No it cannot.

92
Q

Can Parliament delegate law-making powers to the Executive? What are these laws called?

A

Yes.

Delegated legislation.

93
Q

What was ruling in ‘Lesa v Attorney-General (1982) rule?

What act was passed to overturn this decision?

A

Privy Council ruled that all Western Samoans born after 1924 were NZ citizens.

Citizenship (Western Samoa) Act 1982.

94
Q

What did Attorney-General v Ngāti Apa (2003) rule?

What Act was passed to overturn this ruling?

A

CA decided that the Maori Land Court had the jurisdiction to hear claims around Foreshore and Seabed.

Foreshore and Seabed Act 2004

95
Q

What Act repealed the Foreshore and Seabed Act 2004?

A

The Coastal Area Act 2011

96
Q

What did the Ministry of Health v Atkinson (2012) rule?

What Act overturned this ruling?

A

Reached CA where Atkinson won. Ruled that Ministry of Health must pay family member carers of disability family members.

Public Health and Disability Amendment Act (No 2) 2013

97
Q

What Act repealed the Public Health and Disability Amendment Act (No 2) 2013?

A

Public Health & Disability Amendment Act 2020

98
Q

What does the “tyranny of the majority” mean?

A

Where democracy delivers and unfavourable outcome for the minority.

99
Q

Is New Zealand’s constitutional framework effective or ineffective at protecting minorities?

A

Largely ineffective due to Parliamentary sovereignty resulting in tyranny of the majority.

100
Q

Two main human rights?

A

Freedom from discrimination and right to dignity.

101
Q

What are our Civil and Political Rights?

A

Freedom of speech
Right to vote
Right to a fair trial (right to lawyer)
Freedom of movement
Right to life
Freedom of religion
Right to bodily autonomy
Freedom from torture / slavery
Right to privacy

102
Q

How many grounds of discrimination does NZ have?

A

13

103
Q

What are our economic, social, and cultural rights?

A

Right to education
Right to work
Right to health
Right to adequate housing

104
Q

Human right in relation to global warming?

A

Right to healthy environment

105
Q

Do we have a human right to peace?

A

Yes

106
Q

When did international human rights begin?

A

Generally accepted as post WW2.

107
Q

What are the three documents making up the “international bill of rights”?

A

Universal Declaration of Human Rights 1948
International covenant on civil and political rights 1966
International covenant of economic, social, and cultural rights 1966

108
Q

When did NZ ratify (sign up) to ICCPR and ICESCR?

A

1978.

109
Q

3 key legislation for human rights in NZ?

A

New Zealand Bill of Rights Act 1990
Human Rights Act 1993
Privacy Act 2020

110
Q

What occurred in 1985?

A

Government proposal put forth for offical Bill of Rights.

111
Q

Three key requirements of the proposed bill of rights 1985 by Geoffrey Palmer? Where they accepted or rejected?

A
  • Bill of Rights is supreme law.
  • Judicial review to strike down any laws passed not following Bill of Rights.
  • Treaty of Waitangi recognised and affirmed in Bill of Rights.

Rejected.

112
Q

Four categories of rights protected by NZ Bill of Rights Act 1990?

A

Security of the person
Democratic and civil rights
Non-discrimination and minority rights
Criminal procedure rights

113
Q

What does the NZ Bill of Rights Act 1990 not incorporate?

A

Economic, social and cultural rights.

114
Q

What do S3, S4, S5, S6, S7, and S7 A and B of operational provisions of the Bill of Rights Act 1990 enact?

A

Section 3: Bill of Rights Act 1990 rights only apply to 3 branches of government or person or body performing a public function, power or duty.

Section 4: BORA (bill of rights act) is not supreme law.

Section 5: Rights may be justifiably limited.

Section 6: BORA-consistent meanings of other statutes preferred.

Section 7: Attorney-General to report to Parliament on Bills inconsistent with the Bill of Rights Act 1990.

Section 7 A&B: Courts have power to declare inconsistency of legislation with the Bill of Rights Act 1990.

115
Q

What are the operational provisions of the Bill of Rights Act 1990 missing?

A

No remedies clause.

116
Q

What is S18 of the Bill of Rights Act 1990?

A

Freedom of movement

117
Q

How does Bora protect rights?

A

Expression of fauna mental values and rights
Some protection for minorities from tyranny of majority.
A check in legislative process.
Tool for statutory interpretation.

118
Q

What does BORA not do so well in protecting our rights?

A

Parliament is still supreme - legislation can still breach rights
Courts cannot use BORA to strike down legislation.
BORA does not protect economic, social and cultural rights.
Remedies are not included.

119
Q

What is NZ’s humans rights act?

A

Human Rights Act 1993

120
Q

Does human rights act 1993 apply in both private and public context?

A

Yes applies in both.

121
Q

Where does the human rights act 1993 apply in the private context?

A
  • Employment
  • Education
  • Access to places
  • Goods
  • Services
  • Accommodation
122
Q

What are the 13 prohibited grounds of discrimination?

A

Sex
Sexual orientation
Marital status
Family status
Political opinion
Employment status
Religious belief
Ethical belief
Disability
Age
Race
Colour
Ethic / national origins

123
Q

What is missing from the 13 prohibited grounds of discrimination?

A

Immigration status
Gender identity
Socio-economic status

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