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Law 121 - An Introduction To The New Zealand Legal System > Legal History (Lectures 4 - 6) > Flashcards

Legal History (Lectures 4 - 6) Flashcards

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1
Q

The Courts

A

Created Common Law

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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

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3
Q

Magna Carta as Part of the New Zealand Legal System

A

Remains under: The Imperial Laws Act 1988

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4
Q

Anglican Church

A

Established by King Henry the 8th after the Roman Catholic Church disallowed his divorce

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5
Q

The Two Most Dominant Institutions in Controlling the Law up to 1840

A

Crown

Parliament

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6
Q

Theme of English Legal History

A

Struggle for Power Between the Crown and Government

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7
Q

Concepts in the Magna Carta

A

Rule of Law

Freedom of Movement

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8
Q

The Writ of Habeas Corpus

A

A physical document necessary to get the courts to take action in a case

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9
Q

Two Main Types of Law

A

Statutory Law

Common Law

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10
Q

Statutory Law

A

Made by the government

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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.

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12
Q

English Laws Act 1858

A

New Zealand inherited the relevant laws of England up to 14 January 1840

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13
Q

Concepts found in the Magna Carta

A

Rule of Law and Freedom of Movement

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14
Q

The Magna Carta formally incorporated into Legislation

A

In 1297, during Edward I’s reign

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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.

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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

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17
Q

Lord Chancellor

A

Chief Judge of the Court, similar role to that of a modern day prime minister

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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.

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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

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20
Q

The Petition of Rights 1627

A

Set out the rights of Parliament

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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

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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

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23
Q

The Bill of Rights 1688

A

Created the constitutional monarchy

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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.

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25
Q

The Court of Kings Bench

A

Referred to the forum for cases relating to the Crown

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26
Q

The Court of Common Pleas

A

For cases between private individuals or groups

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27
Q

The Court of Admiralty

A

Dealt with maritime matters

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28
Q

The Court of Exchequer

A

Dealt with Taxation issues

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29
Q

The Court of Chancery

A

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.

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30
Q

The English Judicature Acts 1873 and 1875

A

Fused the administration of common law and equity. Reformed and streamlined the British court system

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31
Q

Colonial Legal System

A

Established in 1840

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32
Q

Maxims of Equity

A

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

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33
Q

Statute of Westminster 1275

A

Introduced the rule of law into the English Legal System

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34
Q

Bushell’s Case (1670)

A

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.

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35
Q

Entick v Carrington (1765)

A

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

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36
Q

Carlill v Carbolic Smoke Ball Co. (1893)

A

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.

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37
Q

Contract Must Include

A

Offer, Acceptance, Consideration

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38
Q

Salomon v Salomon & Co (1897)

A

This case was decided in the British House of Lords, and confirmed the seperate legal identity of the limited liability company.

39
Q

Limited Liability Company

A

An inanimate seperate legal personality, as seen in the New Zealand Companies Act 1993

40
Q

Donoghue v Stevenson (1932)

A

Decided in the House of Lords and subsequently was integrated into New Zealand common law. Created the modern tort of negligence.

41
Q

Woolmington v Director of Public Prosecutions (1935)

A

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
Q

English Constitutional Theory

A

Stated that no other legal system could exist in a British colony

43
Q

English Laws Act (NZ) 1858

A

NZ inherited the laws of England

44
Q

New South Wales in 1839

A

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
Q

Proclamation made by Governor Gipps of New South Wales, on 14 January 1840

A

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
Q

On 6 February 1840

A

Treaty was signed between Hobson, as representative of the British Crown, and most Māori chiefs of the Northland region

47
Q

Early English Views of the Treaty of Waitangi

A

Cession of sovereignty

48
Q

Early Māori Views of the Treaty of Waitangi

A

Commitment to an ongoing governing partnership with the English, and a guarantee of their property rights

49
Q

Hobsons Proclamation 21 May 1840

A

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
Q

Letters Patent

A

Issued in November 1840, making New Zealand a Crown colony seperate from New South Wales

51
Q

The Early Legislature of Britain

A

Consisted of hundred of politicians in two Houses of Parliament

52
Q

The Early Legislature of New Zealand

A 
Consisted of seven men:
The Governor
Colonial Secretary
Attorney-General
Colonial Treasurer 
Three Justices of the Peace
53
Q

Governor

A

Led the executive

54
Q

Executive

A

Led by the governor. Temporary arrangement until New Zealand was able to establish representative government

55
Q

The Early New Zealand Judiciary

A

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
Q

Early Supreme Court of New Zealand

A

Later went on to become the High Court of New Zealand

57
Q

The New Zealand Constitution Act (Imperial) 1852

A

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
Q

Houses of Parliament

A

House of Representatives

The Legislative Council

59
Q

House of Representatives

A

Elected by adult males who owned a certain amount of property, this was the lower house that was used to pass legislation

60
Q

The Legislative Council

A

The upper house, appointed by the Governor to act as a check on the House of Representatives

61
Q

Responsible Government

A

Ministers of the Crown were responsible for Parliament

62
Q

The Colonial Laws Validity Act (Imperial) 1865

A

Gave New Zealand Parliament power to pass laws contrary to British law (except laws that specifically extended to New Zealand)

63
Q

The Statute of Westminster Act 1931

A

Provided British dominions with complete self-government

64
Q

Reasons why it took 16 years to adopt the Statute of Westminster Act 1931

A

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
Q

Reasons why New Zealand chose to adopt the Statute of Westminster Act 1931

A

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
Q

Statute of Westminster Adoption Act (NZ) 1947

A

New Zealand adopted the Statute of Westminster

67
Q

The Legislative Council Abolition Act 1950

A

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
Q

Privy Council

A

The apex of New Zealand’s court structure prior to the establishment of the New Zealand Supreme Court in 2003

69
Q

House of Lords

A

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
Q

The Court of Appeal

A

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
Q

New Zealand Constitution Amendment (Request and Consent) Act 1947

A

New Zealand requested and consented to Britain passing law so New Zealand could alter its constitution

72
Q

New Zealand Constitution (Amendment) Act (Imperial) 1947

A

British Parliament gave New Zealand the power to alter the New Zealand Constitution Act

73
Q

Constitution Act (NZ) 1986

A

New Zealand Constitution Act 1852 repealed; no power for Britain to make law for New Zealand

74
Q

Controversial legislation passed by the Liberal Party government

A

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
Q

The Electoral Act 1893

A

First nation in the world to grant women the vote

76
Q

Industrial Conciliation and Arbitration Act 1894

A

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
Q

The Old Age Pensions Act 1898

A

First nation in the world to set up an old age pension system

78
Q

Constitutional Status of New Zealand in 1907

A

Changed from Colony to Dominion

79
Q

The New Zealand Welfare State

A

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
Q

The Great Depression

A

After the Wall Street stock market crash in 1929, New Zealand sank into economic depression

81
Q

The Social Security Act 1938

A

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
Q

The Crimes Act 1961

A

Codified Criminal Law

83
Q

The Resource Management Act 1991

A

Codified Environmental Law

84
Q

The Companies Act 1993

A

Codified Corporate Law

85
Q

Te Ture Whenua Māori Act 1993

A

Codified Māori Land Law

86
Q

Codification

A

Refers to the rules and regulations that have been collected, restated and written down for the purpose of providing civil order to society.

87
Q

Legislation Superseding Common Law in The Accident Compensation Act 1972

A

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
Q

Legislation Superseding Common Law in The Foreshore and Seabed Act 2004

A

Effectively overruled the Court of Appeal’s decision in Attorney-General v Ngāti Ata [2003]

89
Q

Legislation Superseding Common Law in The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993

A

Created a unique New Zealand approach to human rights jurisprudence

90
Q

Legislation that contributed to making New Zealand a unique nation

A 
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
91
Q

The Waitangi Tribunal

A

Established in 1975 by the Treaty of Waitangi Act

92
Q

The Disputes Tribunal

A

Established in 1988 by the Disputes Tribunal Act

93
Q

The Employment Court

A

Established in 1991 by the Employments Contract Act

94
Q

The Environment Court

A

Established in 1996 by the Resource Management Amendment Act

Law 121 - An Introduction To The New Zealand Legal System (3 decks)

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