Magna Carta v ToW essay Flashcards
What should be included in the introduction
- both foundational documents
- ToW often described as NZ’s Magna Carta
- Both included in NZ’s constitution
- Status may change if NZ became a republic
What to include in Paragraph 1
(History of MC)
History of the Magna Carta;
- signed in 1215
- treaty between king and nobles
- Archbishop of Canterbury died; leaving space for a new one
- King John and the pope disagreed over who shall be appointed, Stephen Langton or John de Gray
- King John excommunicated by the pope
- Pope told prince Phillip of France that God justified an invasion
- John retaliates by making Stephen Langton the archbishop
- Barons not happy with the state of England
- King Johns rule included heavy taxing and arbitrary rule
- Barons propose Magna Carta to affirm the Barons rights, June 15 1215
What to include in Paragraph 2
(Significance and legendary meanings of MC)
Significance;
- Earliest recognised statute
- founding document of English constitution
- restorative; not revolutionary
- courts began to cite the MC
- Rule of law
- Imperial laws application act 1988
MC Legendary meanings
- Article #17; Kings court is available for all
- Article #20; Punishment must fit the crime
- Article #24; No punishment without law
- Article #36 & 39; No arbitrary punishment, trial by jury
- Article #38; more evidence needed for conviction than just prosecutors word
- Article #40; general integrity of justice
- Article #61; the king can be bought to court by his people
What should be included in 3?
(History of ToW)
A document between British settlers and Maori Chiefs that honours principles of partnership, to act reasonably and in good faith, and provides active protection
- two versions (an English and Maori) that promised each party seperate entitlements
English version;
1- Transfer of sovereignty to the Crown
2- Guarantees to Maori & Pre-emption rights to the Crown
3- Grant of protection over NZ from the Crown
Maori version;
1- Transfer of governance to the crown
2- maintain sovereignty and give pre-emption rights
3- Grant of protection over NZ from the Crown
Formal recognition of the Tow occurred in 1975 with the ToW Act.
- The ToW tribunal who can submit and acquire recommendations to parliament concerning any Maori claim prejudicially affected by the ToW.
- The state owned enterprises Act 1986, section 9; “nothing in this Act shall permit the crown to act in a manner that is inconsistent with the principles of the ToW.
- SOE case; “the Treaty can no longer be treated as dead letter and to do so would be unhappily reminiscent of an attitude now past”.
Today;
- ToW is an international law document
- parliament is supreme not the constitution, therefore, the ToW is only as significant as parliament allows.
What should be included in paragraph 4? (problems with the legal status of ToW)
The ToW was signed when there was threat of French invasion, this could have lead to the hurry behind the creation of the document and the subsequent areas of conflicting as both Britain and NZ signed to different things.
The ToW has an unknown legal status (It’s not legislation - Waitangi tribunal however can make submissions on parliamentary decisions regarding factors concerning the Treaty)
its legal status has been debated in court decisions in the past.
Wi Parata v Bishop of Wellington; declared a “simple nullity”
Nireaha, Tamati v Baker’ “rather late in the day” to consider the treaty a “simple nullity”
Hoani Te heuheu Tukino v Aotea Distict Maori Land Board; stated that the ToW must be made legislation for courts to hear arguments about it.
Similarities & Differences between MC & ToW
Many legal status’;
MC - “dusty irrelevance of the past”
ToW - “simple nullity”
Power;
MC - power to the people
ToW - power to the crown
Constitutional documents;
MC - part of Englands and NZs constitutional documents, imperial laws
ToW - Not legislation; however, its principles are arguably a part of our law.
Significance;
MC; beginnings of trial by jury, no punishment without law, requirement of evidence
ToW; principles of partnership, to act reasonably and in good faith, active protection
