LES501 Introduction to the Legal System Flashcards
Why do we obey laws?
- It regulates relationships between the individual members of a community.
2.It regulates relationships between the community itself and its members.
Where the law acts to protect the weak and vunerable? Examples
Duress- obtaining consent by means of improper pressure
Undue Influence - taking unfair or improper advantage of a position of dominance that would arise out of a special relationship (ex. Family)
Unconscionable bargin- where another party is unaware of the effects of the contract due to age, lack of education, etc.
Classification of law: Three significant either/or categorisations.
First, is a law substantive or procedural?
Secondly, is it private or public?
Thirdly, is it civil or criminal?
Substantive law
tells us what a person’s rights and obligations are. Substantive law does not tell us about the process we would go through to enforce the law.
Procedural law
tells us how rights and obligations are to be enforced. This area of law determines how a matter is brought to court, how the court case will be run, what documents need to be filed and which processes followed. It also tells us what is required to prove a matter in court.
Private law
Private law regulates relationships between individuals. It is concerned with the rights and duties that individuals have in relation to one another. These rights and duties are enforced by the individual through the courts or other bodies (for example, the Human Rights Commission), or directly by statutory bodies such as the Commerce Commission
Public law
While private law regulates the relationship between individuals, public law is concerned with the actions of the state and the relationship between individuals and the state. It is concerned with the rights and duties that individuals have in relation to the community and the state.
How to name a law
Plaintiff V Defendant (ex The police V Nay)
The sources of New Zealand’s constitution are:
-principles of the Rule of Law
-the Treaty of Waitangi
-the Electoral Act 1993
-the Constitution Act 1986
-the New Zealand Bill of Rights Act 1990
-the Treaty of Waitangi Act 1975
-some (old) United Kingdom statutes
-conventions
-court judgments.
Explain what is meant when we say that New Zealand‘s constitution is partly written and partly unwritten.
Our constitution is not contained in a single written document. Rather, it is drawn from a variety of sources, some of which are written.
What, in your own words, is a constitution?
A framework of rules that stipulates the machinery for governing a country (including, for example, how governments are appointed and how law is made).
The rule of law factors used by the index to measure countries were:
-constraints on government powers
-absence of corruption
-open government
-fundamental rights
-order and security
-regulatory enforcement
-civil justice
-criminal justice.
According to Jeremy Hubbard,
Looking at the history of New Zealand during the 19th century it could be said that the Treaty was a failure. Both in terms of providing for peaceable settlement of New Zealand by the colonists, and as a mechanism for ensuring that Māori rights and aspirations would be protected
(Hubbard & Smith, 2015, p. 31)
Footnote 1.
Hubbard, J., & Smith, N. (2015). The legal environment of business: An Outline (4th ed.). Edify
.
The 1972–1975 Labour Government: The Treaty of Waitangi Act 1975
To help provide legal status to the Treaty principles, in 1975, the Treaty of Waitangi Act was passed. This Act marked a turning point in the legal status of the Treaty through the creation of the Waitangi Tribunal. However, a major limitation was the Tribunal only had the ability to hear claims arising after the passing of the Act. This did little to appease Māori concerns as many of the breaches that they wanted redress for were historical breaches.
The Treaty of Waitangi Amendment Act 1985
As stated above, the 1975 Act placed certain limitations on the Waitangi Tribunal to hear historical grievances. The Treaty of Waitangi Amendment Act, passed in 1985, overcame this limitation on the Tribunal’s powers by extending its mandate so that it could hear claims relating to infringements since the Treaty was signed in 1840. In addition, the Tribunal was given authority to comment on proposed legislation before it comes into law.
Developments in the political status of the Treaty
Since the 1985 amendment to the Treaty of Waitangi Act, there have been a number of important Treaty claims. However, the Tribunal can only recommend redress. The Government may choose to follow this recommendation or not. This means that Parliament can pass a law to overcome the decision of a court or recommendation of the Tribunal.
This is precisely what happened when the Foreshore and Seabed Act 2004 was passed. This Act overcame the decision of the Court of Appeal in Ngati Apa v Attorney-General [2003] 3 NZLR 643.
In Ellis v R [2022] NZSC 114 (7 October 2022)
In Ellis v R [2022] NZSC 114 (7 October 2022), the Court was unanimous that tikanga (customs and traditional values, especially in a Maori context.) has been and will continue to be recognised in the development of the common law of Aotearoa New Zealand in cases where it is relevant.
Section 9 states
Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.’
The Electoral Act 1993
The Electoral Act 1993 regulates New Zealand’s system of voting for Members of Parliament. It prescribes how and when elections are held and deals with such matters as how MPs are replaced between elections, how political parties are registered and how the electoral roll is set up. The Electoral Act 1993 implements the Mixed Member Proportional (MMP) system.
Some characteristics of MMP are as follows.
Voters are each given two votes.
One vote is for a political party (the party list vote).
The other is for a local candidate (the electorate vote).
Any party that gets more than 5 per cent of the votes
is entitled to obtain at least one seat in the House of Representatives.
Any party that wins at least one electorate vote
is entitled to obtain that seat at least.
Seats are allocated to parties on a pro-rata basis, depending on the number of votes received in the party vote. So, for example, a party that gets 30 per cent of the party vote…
will get about 36 MPs in Parliament since Parliament is made up of 120 seats
In order to govern, a party must have at least
50 per cent of the seats in Parliament. Since parties often don’t win 50 per cent, the party with the most votes attempts to form a coalition with other parties so that together they achieve the 50 per cent required to govern.
