Legal History (Lectures 4 - 6) Flashcards
1
Q
The Courts
A
Created Common Law
2
Q
Magna Carta 1297
A
Foundation of the English Legal System; protected group and individual rights against arbitrary monarchial power. 3 clauses of the Magna Carta still remain today
3
Q
Magna Carta as Part of the New Zealand Legal System
A
Remains under: The Imperial Laws Act 1988
4
Q
Anglican Church
A
Established by King Henry the 8th after the Roman Catholic Church disallowed his divorce
5
Q
The Two Most Dominant Institutions in Controlling the Law up to 1840
A
Crown
Parliament
6
Q
Theme of English Legal History
A
Struggle for Power Between the Crown and Government
7
Q
Concepts in the Magna Carta
A
Rule of Law
Freedom of Movement
8
Q
The Writ of Habeas Corpus
A
A physical document necessary to get the courts to take action in a case
9
Q
Two Main Types of Law
A
Statutory Law
Common Law
10
Q
Statutory Law
A
Made by the government
11
Q
Common Law
A
Derived from precedent. also know as “case law.” Primarily involves turning “common sense” into laws that apply to society as a whole, therefore making them “common” laws.
12
Q
English Laws Act 1858
A
New Zealand inherited the relevant laws of England up to 14 January 1840
13
Q
Concepts found in the Magna Carta
A
Rule of Law and Freedom of Movement
14
Q
The Magna Carta formally incorporated into Legislation
A
In 1297, during Edward I’s reign
15
Q
Model Parliament
A
Edward I was responsible for introducing the Model Parliament in 1295, upon which the New Zealand Parliament is based. It became the most powerful institution in England following the mid 1600s.
16
Q
The Act of Supremacy 1534
A
Henry the 8th passed the legislation, legally making him the head of the Anglican church, and requiring leading citizens to swear the Oath of Supremacy recognising his new authority
17
Q
Lord Chancellor
A
Chief Judge of the Court, similar role to that of a modern day prime minister
18
Q
Thomas More
A
Lord Chancellor and patron saint of lawyers, Thomas More, disapproved of the King’s divorce by refusing to accept the Act of Supremacy 1534, and was later charged with treason. He maintained strong Catholic views, yet held his silence as a means to be acquitted of his charges, knowing that silence could not legally be construed as a refusal to accept. However, in spite of More’s use of key legal documents such as the Magna Carta and Henry’s own Coronation Oath as precedents to support his case, the trial was based on perjured evidence and More was soon sentenced to death and executed.
19
Q
The English Civil War
A
During the seventeenth century, the English Civil War broke out and the arbitrary monarchical power was curbed by Parliament
20
Q
The Petition of Rights 1627
A
Set out the rights of Parliament
21
Q
Habeas Corpus Act 1640
A
Initiated by Parliament after their reinstatement in 1640, this Act was the first to clearly enshrine the rights of accused people after arrest
22
Q
The English Republic
A
After the English Civil War ended, England became republic for a short time before the monarchy was restored in 1660, with a reduced role
23
Q
The Bill of Rights 1688
A
Created the constitutional monarchy
24
Q
The English Courts
A
England had a variety of courts instead of a single hierarchy such as New Zealand had from 1840. Each court had different jurisdictions, but in some areas litigants could choose from two or more forums.
25
The Court of Kings Bench
Referred to the forum for cases relating to the Crown
26
The Court of Common Pleas
For cases between private individuals or groups
27
The Court of Admiralty
Dealt with maritime matters
28
The Court of Exchequer
Dealt with Taxation issues
29
The Court of Chancery
Was formed as a seperate court from the common Law and allowed litigants to appeal directly to the Crown, or Lord Chancellor. Cases were decided on the basis of fairness, or equity, rather than common law precedent.
30
The English Judicature Acts 1873 and 1875
Fused the administration of common law and equity. Reformed and streamlined the British court system
31
Colonial Legal System
Established in 1840
32
Maxims of Equity
Equity regards as done that which ought to be done
Equity will not suffer a wrong to be without a remedy
Equity delights in equality
One who seeks equity must do equity
One who comes into equity must come with clean hands
33
Statute of Westminster 1275
Introduced the rule of law into the English Legal System
34
Bushell’s Case (1670)
Established the right of a jury to be free from judicial coercion. In this case, the judge rejected the jury’s decision to acquit, and demanded that they remain remanded until a guilty verdict was returned. Edward Bushell, a member of the jury, successfully took the case to the Court of Common Pleas and it was established that a judge could not coerce a jury into reaching a particular verdict.
35
Entick v Carrington (1765)
Proclaimed that the state is subject to the law of the land, and also upheld the right of all individuals to be free from unreasonable search and seizure from the state. This right can be found in s 21 of the NZ Bill of Rights Act 1990. Lord Camden, Chief Justice of the Court of Common Pleas Rules that the search and seizure of personal belongings carried out by the state was illegal as it was not based in any legislation or common law precedent
36
Carlill v Carbolic Smoke Ball Co. (1893)
Established the necessary requirements for contract information. A company who produced a “smoke ball” that claimed would prevent influenza and promoted that anyone who contracted the influenza using the device would be compensated. The plaintiff sued the company for breach of contract, as she contracted the influenza and was not compensated.
37
Contract Must Include
Offer, Acceptance, Consideration
38
Salomon v Salomon & Co (1897)
This case was decided in the British House of Lords, and confirmed the seperate legal identity of the limited liability company.
39
Limited Liability Company
An inanimate seperate legal personality, as seen in the New Zealand Companies Act 1993
40
Donoghue v Stevenson (1932)
Decided in the House of Lords and subsequently was integrated into New Zealand common law. Created the modern tort of negligence.
41
Woolmington v Director of Public Prosecutions (1935)
A criminal law decision that clearly affirmed the right of a defendant to be presumed innocent until proven guilty. Woolmington failed to overturn the guilty verdict in appeal, The House of Lords quashed the conviction, upholding the right of all people to be considered innocent until proven guilty by the prosecution
42
English Constitutional Theory
Stated that no other legal system could exist in a British colony
43
English Laws Act (NZ) 1858
NZ inherited the laws of England
44
New South Wales in 1839
The boundaries of the British Colony of New South Wales were extended to include New Zealand; pending Britains acquisition of sovereignty over New Zealand
45
Proclamation made by Governor Gipps of New South Wales, on 14 January 1840
Confirmed William Hobson as Lieutenant-Governor and New Zealand as being within the boundaries of New South Wales. These events preceded the first signing of the Treaty but in effect was contingent on Māori giving up sovereignty through the Treaty
46
On 6 February 1840
Treaty was signed between Hobson, as representative of the British Crown, and most Māori chiefs of the Northland region
47
Early English Views of the Treaty of Waitangi
Cession of sovereignty
48
Early Māori Views of the Treaty of Waitangi
Commitment to an ongoing governing partnership with the English, and a guarantee of their property rights
49
Hobsons Proclamation 21 May 1840
Sovereignty had been gained over the North Island by cession and the South Island by discovery. This changed when South Island rangatira signed the Treaty, and sovereignty was instead referenced in a seperate proclamation as also being gained through cession.
50
Letters Patent
Issued in November 1840, making New Zealand a Crown colony seperate from New South Wales
51
The Early Legislature of Britain
Consisted of hundred of politicians in two Houses of Parliament
52
The Early Legislature of New Zealand
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Consisted of seven men:
The Governor
Colonial Secretary
Attorney-General
Colonial Treasurer
Three Justices of the Peace
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53
Governor
Led the executive
54
Executive
Led by the governor. Temporary arrangement until New Zealand was able to establish representative government
55
The Early New Zealand Judiciary
Consisted of two men. The Chief of Justice (William Martin, head of the original supreme court), Henry Chapman (first Puisne Judge, or associate Supreme Court Justice)
56
Early Supreme Court of New Zealand
Later went on to become the High Court of New Zealand
57
The New Zealand Constitution Act (Imperial) 1852
Established New Zealand's constitutional structure and allowed for two Houses of Parliament. This Act included a number of entrenched provisions that could only be amended by Britain. Furthermore, the Act itself was an imperial one that only Britain could repeal. Laws made by the New Zealand Parliament were only to address the "peace, order and good government of New Zealand," provided any law made did not conflict with any British law
58
Houses of Parliament
House of Representatives
| The Legislative Council
59
House of Representatives
Elected by adult males who owned a certain amount of property, this was the lower house that was used to pass legislation
60
The Legislative Council
The upper house, appointed by the Governor to act as a check on the House of Representatives
61
Responsible Government
Ministers of the Crown were responsible for Parliament
62
The Colonial Laws Validity Act (Imperial) 1865
Gave New Zealand Parliament power to pass laws contrary to British law (except laws that specifically extended to New Zealand)
63
The Statute of Westminster Act 1931
Provided British dominions with complete self-government
64
Reasons why it took 16 years to adopt the Statute of Westminster Act 1931
New Zealand had very strong cultural and economic ties to Britain (like the sacrifices made by New Zealand to aid Britain in the First World War)
The New Zealand economy depended on agricultural exports having direct access to the British market
New Zealanders were generally unconcerned with constitutional issues
65
Reasons why New Zealand chose to adopt the Statute of Westminster Act 1931
The realisation that Britain would not be able to come to their defence against a foreign attack
New Zealand started to see its future as a pacific rim nation, rather than as a former British colony
66
Statute of Westminster Adoption Act (NZ) 1947
New Zealand adopted the Statute of Westminster
67
The Legislative Council Abolition Act 1950
The role of the Legislative Council in checking the power of the House of Representatives stopped in the 1890's after politicians started to stack the council with their own supporters. The New Zealand Constitution Act had to be amended in order to abolish the Legislative Council, and the only way to do this was to adopt the Statute of Westminster. The Statute of Westminster Adoption Act was passed, but this alone didn't give New Zealand the power to change the Constitution Act 1852. New Zealand made a request to Britain for legal intervention regarding the New Zealand Constitution Amendment (Request and Consent) Act 1947, which Britain accepted, resulting in British Parliament passing the New Zealand Constitution (Amendment) Act 1947, which allowed New Zealand to make changes to their constitution. After it's election in 1949, the first official National Party government stacked the Legislative Council with members who would all vote to abolish it, from this The Legislative Council Abolition Act was passed in 1950.
68
Privy Council
The apex of New Zealand's court structure prior to the establishment of the New Zealand Supreme Court in 2003
69
House of Lords
The Upper House of English Parliament. New Zealand had always followed House of Lords decisions prior to the case of Corbett v Social Security Commission (1962). The New Zealand Court of Appeal followed the Privy Council in this case and decided that the House of Lords had no formal jurisdiction over New Zealand Courts, meaning we would no longer be following English precedent
70
The Court of Appeal
New Zealand's intermediate Appeal Court. Hears appeals from civil and criminal cases heard in the High Court, appeals from criminal jury trials in the District Courts, and leave applications where a second appeal is to be taken.
71
New Zealand Constitution Amendment (Request and Consent) Act 1947
New Zealand requested and consented to Britain passing law so New Zealand could alter its constitution
72
New Zealand Constitution (Amendment) Act (Imperial) 1947
British Parliament gave New Zealand the power to alter the New Zealand Constitution Act
73
Constitution Act (NZ) 1986
New Zealand Constitution Act 1852 repealed; no power for Britain to make law for New Zealand
74
Controversial legislation passed by the Liberal Party government
The Electoral Act 1893
Industrial Conciliation and Arbitration Act 1894
The Old Age Pensions Act 1898
The division of large pastoral estates into smaller farms
75
The Electoral Act 1893
First nation in the world to grant women the vote
76
Industrial Conciliation and Arbitration Act 1894
First nation in the world to introduce compulsory arbitration. The Act was passed as a way to promote cooperation between employers and employees. Providing trade unions with legal status and introduced minimum rage rates and enforceable employment conditions. If conciliation proceedings would not resolve an issue, it would then be decided by the Arbitration Court created by the statute
77
The Old Age Pensions Act 1898
First nation in the world to set up an old age pension system
78
Constitutional Status of New Zealand in 1907
Changed from Colony to Dominion
79
The New Zealand Welfare State
Formed with the view that every New Zealander has a right to a reasonable standard of living, the first Labour government brought in initiatives like the state housing scheme, alongside the Social Security Act 1938.
80
The Great Depression
After the Wall Street stock market crash in 1929, New Zealand sank into economic depression
81
The Social Security Act 1938
Established by the first Labour party Government, this Act provided 'cradle to grave' government support in New Zealand. Various benefits were created by this Act including the superannuation benefit, the family benefit, and the unemployment benefit.
82
The Crimes Act 1961
Codified Criminal Law
83
The Resource Management Act 1991
Codified Environmental Law
84
The Companies Act 1993
Codified Corporate Law
85
Te Ture Whenua Māori Act 1993
Codified Māori Land Law
86
Codification
Refers to the rules and regulations that have been collected, restated and written down for the purpose of providing civil order to society.
87
Legislation Superseding Common Law in The Accident Compensation Act 1972
Replaced the common law are of personal injury negligence with a communal insurance system (removing the right to sue in this area of law), instead health costs are funded from the communal Accident Compensation Corporation (ACC) fund
88
Legislation Superseding Common Law in The Foreshore and Seabed Act 2004
Effectively overruled the Court of Appeal's decision in Attorney-General v Ngāti Ata [2003]
89
Legislation Superseding Common Law in The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993
Created a unique New Zealand approach to human rights jurisprudence
90
Legislation that contributed to making New Zealand a unique nation
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1893 Electoral Act
1894 Industrial Conciliation and Arbitration Act
1898 Old Age Pensions Act
1938 Social Security Act
1947 Statute of Westminster Adoption Act
1950 Legislative Council Abolition Act
1961 Crimes Act
1972 Accident Compensation Act
1986 Constitution Act
1990 New Zealand Bill of Rights Act
1993 Te Ture Whenua Māori Act
1993 Human Rights Act
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91
The Waitangi Tribunal
Established in 1975 by the Treaty of Waitangi Act
92
The Disputes Tribunal
Established in 1988 by the Disputes Tribunal Act
93
The Employment Court
Established in 1991 by the Employments Contract Act
94
The Environment Court
Established in 1996 by the Resource Management Amendment Act
