Final reminders for LAWS101 A Flashcards
Earliest form of written law
Code of Hammurbi
Religious - sent down from god to the king who engraved onto stone pillar
Eg of Roman Law
Corpus Juris Civilis
Roman Law
Conquered England
Written code that came from the people - “law of the people”
Withdrew from England and went to other european countries
After Romans left…
Anglo Saxons
Unriwtten customs and traditions
Focused on compensation and religion
Not made by people, made by god.
Alternative trial methods
After the Romans…
William the Conquerer
Kept Anglo
But contributed to development of common law - ordered for consistency in application and operation of law
After william
Henry II
Continued Williams consistency in common law
BUT
Added 2 things we still see today:
1. Writt system - kings power to turn up, not just hope
2. Trial by Jury - systematised it, not from god.
Willaim …. did what
III
Signed NZBORA
All power to parm
Development of common law in NZ:
- English law doctrine - collonisation
- 1840 Treaty signing + procs
- 1840 Legislative council to make courts and appoint judges - beggining of a formal legislative function
- 1841 - British Colony
- 1841 - supreme, now high court
- 1846 - Magistrates court
- 1858 - English laws act
- 1862 - COA
Order of dates for development of common law
nothing
1840
1840
1841
1841
1846
1858
1862
Key origin to Parliment
Started in the Witengamont
Key kick starter to parliment emerging
Montfort
KEY OVERALL TIMELINE
Hammurbi
Roman law
Anglo saxon law + witengamont
William + curia regis
Henry II
Magna Carta
De Montfort
Model
Edward III
Struggles
BORA
NZ Breaking away from English Parliment:
1852 - NZ Constitution Act
1947 - Statute of Westminister Adoption Act
1947 - NZ Constitution Amendement Act
1986 - Constitution Act
Order of dates for departing from england
1852
1947
1947
1986
Key point for NZ independance:
It took time before NZ was ready to break away from the influence on the English Parliment. BUT, eventually we moved to having a full, autonomous and supreme parliment
Date for William The Conquerer
1066
Date for Curia Regis
1066
Date for Henry II
1154
Date for Magna Carta
1215
Date for Montfort
1265
Date for Edward III
1340
Date for BORA
1688/89
Ngati Apa case
The Ngati Apa case which triggered the Foreshore and Seabed Debate
1840 - TOW signed
Maori property rights to dry lands are extinguished through legislation over the years
2004 - Ngati Apa iwi wins in the Maori Land Court which said that they might still have claims on the land and it had the jurisdiction to be able to hear and determine claims of Maori ownership of the foreshore and seabed
Government appeals this up to the high court and wins - because they aligned with the Nintey Mile Beach case
Ngati Apa appeals this up to the court of appeal and wins - COA said that property rights endure unless they are extinguished explicitly by legislation - there was not a clear law doing this
Also finally ruled that the Wi Parata decision was bad law - saying the crown did not gain imperium when they gained dominion.
Labor party government immediately responds to this by enacting the Foreshore and Seabed act 2004 - trying to have clear legislation that removes Maori land courts jurisdiction to hear claims about foreshore and seabed land
Huge political upheaval - protests etc.
2011 - National/Maori party coalition government gets into power and passes the Marine and Coastal Area Act 2011 to repeal the foreshore one - says that NOBODY owns the foreshore and seabed but it allowed for Maori to pursue claims to get customary title (better than nothing for the Maori as there is now a POSSIBILITY).
Ratio in A-G v Smith
Because no meaning was being conveyed by Smith’s wearing of a wig, this was not enough to amount to expression and therefor engage S14
Court of appeal distinguishes that expression happens when you are doing something to stand out
But Smith was trying to fit in - disginguished Pointon who was trying to stand out.
Ratio in Lowe v Police
Nude bike riding was not offensive - Quiet road and can’t see parts - cars going past at high speeds would not be able to see much
The complainant was concerned about high speed not OFFENDED by his nudity - different from Pointon.
He is committed to being nude but not offending by it - no intention.
Case for legal pluralisim
Takamore v Clarke
Hansen Test
- Try and find the Intended meaning using normal rules of stat interp
- If that meaning infringes on rights, the court will consider whether the infringement is justified as per S5
- If justified then done.
- If not justified, then court will use S6 to see whether they can adopt a rights consistent interpretation. If a better meaning is availible they will use it and done
- If not availible, then S4 will be used to say the courts are still required to apply because of parlimentary supremacy.
Issue with the Hansen Test
Gives S5 prominenece over S6 - problematic because S6 is a primary mechanisim for protecting rights and this means that it might not even get to S6
Ratio in Morse
Applied the reasonable person standard - reasonable person would recognise their right to protest under FOE and would have tolerance to this behaviour.
Not considered as behaving in an offensive manner - just FO
Ratio in Pointon
Said that, yes it was expression, as he was expressing his unusual lifestyle choice - just because someone (lady) doesn’t like his expression, does not mean it is not expression.
Also said that is was not offensive. Applied Lowe v Police where the biking was not offensive - said it was the exact same as they were both unlikely to be seen by a large number of people and were both committed to being nude but not showing it off.
Date for Model Parliment
1295
