Parliament/Executive Flashcards
Attorney-General v Taylor
Taylor, a high profile prison inmate, brought this case against the state that the new 2010 legislation prohibiting prisoners rights to vote was inconsistent with NZBORA.
Held that this was inconsistent with NZBORA but regardless the law could not be strike down by the courts because Parliament is supreme. Declaration of inconsistency was made but there is nothing making Parliament listen and act upon it.
This case is significant in showing how and why Parliament is sovereign when it comes to the law.
Pickin v British Railway Boards
Mr. Pickin brought land next to railway line because of terms in 1835 legislation if the railway line stopped being used the property went to the neighbor. In 1968 Parliament passed a private bill stating that the 1835 legislation no longer applied.
Question of law was should a standing order require those affected by a private bill to be notified by the change?
The court dismissed this case because they will not look at claims that involve the legislative process as it would be inconsistent with separation of powers/comity.
Ngaronoa v Attorney-General
OBITER: Supreme Court suggest that if Parliament does not oblige by an entrenched legislation then the “courts may be able to step in and declare that the resulting legislation is invalid” (strike it down and say it is not law).
The Kiwi Party Incorporated v Attorney-General
This case was brought in the wake of the Government changing NZ gun laws after the Christchurch Mosque Shooting. The plaintiffs are asking for the legislation to be struck down or at the least they ask for a declaration of inconsistency to be issued because “there is a constitutional right to bear fire arms and inconsistent with a standing order”.
Court refused to hear case and held that there is no property rights that override the Supremacy of Parliament to enact any law they want.
The court cannot hear cases that involve investigating into the legislative processes of Parliament by virtue of the principal of comity and the separation of powers.
Entick v Carrington
John Entick was suspected of writing anonymous articles critiquing the Government and Politicians. A Sectary of State (Earl) purported his authority to issue a warrant to search his house to find evidence it was him. No evidence was found and John sues in Trespass.
Court found no authority can be found giving the Earl the power to issue the warrant in statute or common law. Therefore the warrant was just a piece of paper with no legal enforceability attached to it.
Key reason was that the warrant gave such a broad level of power. Court said that when a power is so wide you’d expect the law to be express/clearly say it can be used.
“Silence in the books is an authority against the defendant”.
This case shows the core principle that the Rule of Law applies to those exercising public power in the same way it applies to everyone else in society.
Webster v NZ Police
Upon an altercation with his son who was “high on methamphetamine”, Mr. Webster called the police to come remove him from his property. When the police arrived Mr. Webster was holding a metal pole and the son was outside the gate. Mr. Webster was telling police not to enter his property. The police tried to entered the property but Mr. Webster pushed them off the property. He was arrested and charged with disorderly behavior and charged with assaulting a police officer.
Held that Police acted beyond lawful execution (did not have authority to enter property) and therefore Mr. Webster resisting police was not an offence.
You cannot enter someone’s property when they have objected your entry.
Mr. Webster was entitled to push police away because there is a legal right to use reasonable force to keep someone off your property.
No statute legally allowed the police to enter property because there was no threat to life, no crime being committed, and no question of risk of safety.
Fitzgerald v Muldoon and Others
Upon taking over Government Muldoon made a press release instructing employers to ignore a superannuation scheme introduced by previous Government. The Amendment to the Act will not take place for another couple months, but it will have retrospective effect so may as well ignore it from now on. (JR).
Held that the announcement of the PM was illegal breaching article 1 of BOR 1688. Parliament is the only body that can amend or suspend the law. An Act of Parliament remains binding law until Parliament themselves removes it. Those in the executive (although in reality they determine the law) cannot order people to ignore Acts of P.
Borrowdale v Director-General of Heath
Case about legal authority for G putting country in lockdown and all non essential businesses to close.
Held that it was legal and Parliament did intent to give these powers.
Statutory interpretation = permitted to make these orders to a whole country.
COA found on facts this was okay to delegate this job as Bloomfield had gave guidelines and the other department just filled in the blanks.
Quake Outcast v Minister for Canterbury Earthquake Recovery
In response to the Christchurch earthquakes Parliament enacted the Christchurch Earthquake Recovery Act 2011. The Government announced a redzone and made deferential offers to purchase property those insured (100%) and those uninsured (50%). Outcasts (those uninsured) appealed.
Question of law was if when the G went about deciding what to do with Christchurch home owners did it have to act under the legislation passed by P or could it continue to rely on a general residual freedom (third source)?
Held that they must act under legislation because it prevailed the residual freedoms (residual powers cannot be used where there is an existing statute that covers the field) because Parliament intended the Act to be a catch all and govern all earthquake response.
Purpose of the Act was to fix everyone up and therefore consideration of moral hazards was not required. Thus there was no authority to make deferential offers.
Christiansen v Director-General of Heath
Officials refused C request for an exception on “compassionate ground” and “exceptional circumstances” (as per Health Act 1956) to be released from MIQ to see father on his death bed.
There was an exhaustive list of situations where release would be granted, because Mr Christensen didn’t met one of the criteria as per the list he was refused.
Held the refusal was not lawful.
The order under the Heath Act said to look at the individual circumstances of the person and make decision based on this - because of the exhaustive list of situations warranting an exception this order was not being obeyed.
The court issue interim relief rather than sending decision back to the officials because the dad was dying and was under time pressure (normally decision would be left to the officials not the court).
Grounded Kiwis Group v Minister of Heath
Claim that the process of MIQ allocation in the lottery process was not lawful as it did not take into account individual circumstances.
Government did not consider alternatives and went for the easiest system to run.
As a result the court issued a declaration to the effect that the lottery system was unlawful because it is a unjustified limit to section 18 of NZBORA.
Upon declaration MIQ had ended, but can still be useful for future Governments.
Not lawful.
