Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

2021 - public > rule of law > Flashcards

rule of law Flashcards

1
Q

the rule of law is the organising principle of?

A

political thought

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

the rule of law prescribes the formal requirements of legal norms, which are?

A

law must be general, certain, stable, accessible and prospective

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

what are De Smith’s idea’s on the rule of law

A

a) the powers exercised by politicians and officials must have a legitimate foundation; they must be based on authority conferred by law; and
b) the law should conform to minimum standards of justice, both substantive and procedural

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

the rule of law is 3 things what are they?

A
  1. a fundamental requirement of civil society
  2. a substantive as well as procedural concept
  3. a norm of institutional morality for the guidance of public action
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

how does legal positivist scholarship view the rule of law

A

procedural (minimalist) concept, identifying the formal requirements of law but eschewing any prescriptive content - no necessary or minimum moral content

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

how do natural lawyers view the rule of law

A

argue it must imply more than ‘government according to law’

  • to allow totalitarian regimes to claim the mantle of the rule of law would discredit the concept as a means of social regulation
  • a legal system emptied of moral content cannot command a general duty of obedience to the law
  • respect for elementary consideration of humanity requires the rule of law to afford protection against pernicious, invasive or degrading laws
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

what does Lord Hope say about Parliamentary Sovereignty in the foxhunting case?

A

“Parliamentary Sovereignty is no longer, if it ever was, absolute”

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

the in extremis power is one of last resort, to be exercised only when ?

A

the most exceptional circumstances mandated exceptional action

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

the Magna Carta and the rule of law are ____ joined

A

unseparably

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Coke - the kind “hath no prerogative but …

A

that which the law of the land allows him

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Lord Camden CJ “if it is law, it will be found in our Books. If it is not to be found there, …

A

it is not law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

define a totalitarian regime

A

a dictatorship, not governed by the rule of law and often resulting in human rights abuses. they are despotic, oppressive and tyrannous

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

define laissez faire

A

“let do” - the concept of limited governance and the general principle of non-interference in people’s lives

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

define habeas corpus

A

writ to a jailor to produce a prisoner in person before the court and to state the reasons for detention

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

define a priori

A

reasoning from logically prior principles or pre-existing knowledge

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

define in extremis power

A

in the last extremity/in desperate circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

the rule of law is the ____ principle of legality under the Westminster system

A

ultimate

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

what are the two conceptions of the rule of law

A

positivist (thin/minimalist) vs natural law conceptions (thick)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

what are Dicey’s 3 principles of the rule of law

A

supremacy of regular law, equal application of the law and all are bound by the law no matter their station (governments and the governed), critical importance of common law principles of freedom and liberty - now largely codified in NZBORA

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Lord Hope, in the Foxhunting case, said the rule of law enforced by the courts is the ____ ____ ____ on which our constitution is based

A

ultimate controlling factor

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

the rule of law seeks to reconcile ___ ___ ___ and ___ ___ __ ____

A

organised state power and personal autonomy and liberty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Hobbes and Locke were both concerned with which one question?

A

why did man walk out of a state of nature and enter into civil society

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

how did Thomas Hobbes want to ensure protection by rules

A

establish an all powerful sovereign termed Leviathan and the monarch was the most natural person to be that all powerful sovereign

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

why did Hobbes say man walked out of nature

A

because Man’s predicament was “solitary, poor, nasty, brutish, and short” - these aspects were lacking due to lack of protection and rules

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

what did John Locke want to do to ensure ptoection

A

concept of limited government, government holds power in trust for the people (the beneficiaries of the exercise of state power)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

what are the formal/procedural requirements set out by the rule of law

A

law must be: general, certain, stable, accessible and prospective

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

what further prescription does a naturalist view of the rule of law add beyond the formal requirements which the positivists stop at

A

that it operates as a principle of institutional morality which imposes disciplines in public defence - which is more realistic today as we would hold certain laws to be oppressive, pernicious, beyond application by the courts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

what did Lord Bridge, in Bennet v Horseferry Road Magistrates’ Court, say about the rule of law

A

“there is no principle more basic to any proper system of law than the maintenance of the rule of law itself … “

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

legal positivism believes that law is that law established by?

A

some recognised legal authority (we look to Parliament or common law courts)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

for legal positivists, there is no necessary connection between __ and ___

A

law and morality - law as it is and law as it ought to be

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

what text came around the time positivism was dominant

A

HLA Harts 1960 Concept of Law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

under a natural law conception, the rule of law has a powerful sociolegal force as a ?

A

prescription for government, making it more valuable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

are the 5 propositions about the rule of law separate?

A

no, they are the buildings blocks that establish a rule of law structure that straddles the entire constitutional system

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

according to Joseph, the rule of law has which two roles

A

being a norm of institutional morality (guiding and legitimating public action) and being a supranational concept (belonging to many liberal democracies who all subscribe)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

what conversation does the rule of law join liberal democracies in

A

a conversation about rights and the proper organisation of the state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

what movement emerged post WWII

A

international human rights movement, which identifies directly with the substantive sense of the rule of law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

what is the object of the rule of law

A

to promote individual autonomy and human dignity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Cooke described the international human rights movement as?

A

the rise of constitutionalism

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

what are Joseph’s 5 propositions about the rule of law

A
  1. the rule of law is a fundamental requirement of civil society
  2. the rule of law is a substantive and not merely procedural concept
  3. the rule of law is a normative concept for the guidance of public action
  4. the rule of law is a supranational concept that transcends national boundaries
  5. the rule of law is the foundational norm and ultimate principle of legality for Western political systems
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

what are the formal requirements of law - and thats it for positivists

A

all public action must be authorised by law and law as a body of rules must be general, prospective, accessible, stable and certain

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

what are some further procedural requirements of a formalist conception of the rule of law

A

like cases ought to be decided alike, the law should apply equally to all (see also: Dicey) and public decision makers must adhere to procedural requirements of natural justice (e.g. cannot be condemned unheard)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

what was the basis of Joseph Raz’s 1979 article

A

warning against coupling the rule of law with theories of social justice which exist independently. to condemn unjust laws under the banner of the Rule of Law empties the Rule of Law of any independent content

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

what did Judith Shklar say about coupling the rule of law and social justice

A

coupling reduces the rule of law to “working class chatter” - a meaningless concept

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Joseph believes the rule of law is a ____ concept with ___ ____

A

moral concept with normative purpose - otherwise its not a valuable concept

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

if the rule of law is to be a valuable concept, then in Joseph’s eyes it must imply more than __ __ __ __

A

government according to law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

what are 3 examples of how if the rule of law was purely formalistly interpreted then it wouldn’t be valuable?

A

habeas corpus - if the law authorised arbitrary detention, then every return to the writ of habeas corpus would be good

how valuable would the right to property ownership be if the law authorised expropriation without compensation

what about a law reversing the presumption of innocence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

if we empty the law of moral content (like legal positivists do) then law cannot distinguish between what two extremes

A

good and evil

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

to allow totalitarian regimes to claim the Rule of Law as theirs would undermine the worth of the Rule of Law concept as a means of ___ ____

A

social organisation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

if we empty a legal system of all moral content, the law cannot command ?

A

a general duty of obedience (to the law)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
50
Q

contrary to Raz’s formalist conception, our concept of the Rule of Law enshrines the institutional morality that legitimises ___ ___ and __ __ ___ ___ ___

A

constitutional government and the exercise of public power

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
51
Q

the rule of law is a metaphor for ?

A

principles of liberty and social justice and for the correct organisation of the state

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
52
Q

what does the rule of law imply?

A

representative democracy and a system of independent courts which can enforce the ROL

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
53
Q

the rule of law embraces liberal rights and freedom but it isn’t clear ?

A

which rights and freedoms are included so we look to international and national human rights instruments

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
54
Q

what are some international human rights instruments and how are they connected

A

Universal Declaration of Human Rights 1948

European Convention on Human Rights 1950

International Covenant on Civil and Political Rights

  • all have shared agreement as to what the primary, civil and political rights are
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
55
Q

what are some national human rights instruments

A

canada charter of rights and freedoms

NZBORA

hong kong

united kingdom 1988 Human Rights Act

Ireland

South Africa

Some aussie states

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
56
Q

do all national level human rights instruments proclaim the same rights and freedoms

A

yes

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
57
Q

the canada charter of rights and freedoms and the NZBORA both seek to give effect to which international instrument

A

the ICCPR

58
Q

the United Kingdom Human Rights Act 1988 seeks to codify which international instrument

A

European Convention on Human Rights

59
Q

what are some rights and freedoms in the NZBORA, as taken from the ICCPR

A

right to life, right of access to the courts, right to the presumption of innocence, right to a fair trial, right to natural justice, right to be free from retrospective offences, right to be free from torture, right to freedom of speech, right to religious freedom, right to vote

60
Q

why do legal positivists view a natural take on the rule of law as invaluable

A

because it would render it uncertain and how can it be a valuable concept if it is indeterminate?

61
Q

legal positivists say the rule of law is the law of ?

A

rules - ascertainable, determinate and certain

62
Q

the positivist view misunderstands the rule of law as a constitutional principle, how?

A

the ROL is interior to the law itself and sits above it, becoming an organising concept of political thought that informs the law

63
Q

the rule of law is incapable of a universal ?

A

definition

64
Q

what acts relate to the definition of the rule of law, though don’t attempt to define it themselves

A

Constitutional Reform Act 2005, s1(UK)

Lawyers and Conveyancers Act 2006, s4

Senior Courts Act 2016, s3(2)

65
Q

the Constitutional Reform Act 2005 claims?

A

that it doesn’t affect the existing principle of the rule of law

66
Q

what does Lord Bingham say in relation to the Constitutional Reform Act 2005

A

the meaning of the rule of law is so clear no definition is necessary. he thought the definition should be worked our by the courts on a case by case basis rather than by parliament. the concept had evolved over time and was likely to continue to do so

67
Q

the lawyers and conveyancers act 2006 imposes what obligation on all practising lawyers

A

“the obligation to uphold the rule of law”

68
Q

the senior courts act says that “nothing in this Act affects New Zealand’s continuing commitment to ?

A

the rule of law and the sovereignty of Parliament”

69
Q

what are some examples of how the law is uncertain

A
  • we have courts to resolve legal uncertainties
  • 50km/hr driving is a certain law but the Summary Offences Act 1981 s4(1a) creates the offence of offensive behaviour, but what is offensive to one person may not be to another
70
Q

what happened in Morse v Police, proving the uncertainty of the law

A

Valerie Morse and her buddies set alight the NZ flag across the road from the cenotaph outside parliament during ANZAC dawn ceremony due to her objection to NZ’s participation in various theatres of war over the ages.

she was charged with offensive behaviour under Summary Offences Act 1981 s4(1a) and in the lower courts was convicted by the SC quashed finding it not effective

71
Q

what role do the courts play in the rule of law

A

they contextualise the rule of law by using it as a director to reach a decision. it operates as a default reaction to injustice where there are no other applicable laws. constitutional norms remain partially indeterminate and obscured until actual situations of injustice arise and in this sense the rule of law becomes contextualised. fundamental principles are materialised in tangible form, giving concrete definition to the rule of law

72
Q

what happened in R (anufrijeva) v Secretary of State for Home Department

A

Anufrijeva came to the UK and made an application for refugee status seeking asylum, which qualified her for income support. the officials later stopped this support without communication.

Anu brought an action claiming she was entitled to backpay for the time between it was stopped and when it was finally communicated.

the House of Lords said “even in unprepossessing cases, fundamental principles must be upheld. The rule of law requires it”

in this case, the rule of law was a touchstone for extending judicial protection. not communicating the decision violated “the constitutional principle requiring the rule of law to be observed” - ROL requires you to be able to challenge adverse decisions, but you can’t do this if it is not communicated to you

73
Q

what happened in R (Corner House Research) v Director of the Serious Fraud Office

A

UK SFO commenced an investigation into allegations there had been bribes paid by certain British companies to secure arms contracts to Saudi Arabia. Saudi’s threatened to no longer share security information with the UK if the SFO continued with the investigation, so the Director of the SFO stopped its investigation and Corner House Research challenged the decision.

the divisional court held law enforcement agencies were obliged to maintain their independence against improper threats or interference, making repeated references to the rule of law. “the surrender of a public authority to threat or pressure undermines the rule of law”

the House of Lords later applied a formalist legal reasoning and upheld the directors decision as being good in law by reframing the question to whether the directors decision was one he was lawfully entitled to make rather than whether pulling the investigation was a breach of the rule of law (divisional court)

elements of choice, judgment and discretion underpinned the different approaches - no certainty

74
Q

why is the rule of law a supranational concept that transcends national boundaries

A

the international human rights movement and our adoption of this through the NZBORA etc.

International instruments and the rule of law are inseparably linked and “human rights should be protected by the rule of law”

common law jurisdictions have internalised rights through the adoption of bills of rights and some contend this is building an international common law of rights.

there is a rise of transnational rights dialogue, helped by basic technologies like computers and the internet to facilitate speedy communication rather than waiting months for law reports for example

courts are talking the same language and addressing the same issues as other courts worldwide

75
Q

the 5th proposition about the rule of law - the rule of law is the foundational norm and ultimate principle of legality for whom?

A

Western political systems

76
Q

what examples of government attempts to tamper with the fundamentals of constitutional democracy did Lord Steyn (champion of human rights) give in relation to the question of whether the courts would uphold those statutes as validly operative

A

government attempting to tamper with the fixed term of Parliament by enacting a statute to defer the election

what if the government told the courts to keep out in a statute through a privative clause?

what is Parliament enacted a statute that tampered with the rule of law e.g. took away the independence of the judiciary or took away our rights

77
Q

the judicial branch is charged with maintaining what?

A

the constitutional balance through judicial review - HC jurisdiction to entertain challenges to public decision making to enforce the rule of law and ensure government according to law

78
Q

what is a privative clause

A

a clause which says this decision of this decision making body will not be subject to challenge through judicial review

79
Q

when did Lord Steyn say the rule of law may trump parliamentary supremacy

A

in exceptional cases e.g. statutes that seek to take rights away, limit judicial review or defer elections

80
Q

the rule of law services which two mutually reinforcing ideals

A

the imperative to maintain civil society and the need to vouchsafe liberal democratic rights

81
Q

what tension did Dicey promote

A

between the concept of the rule of law (fundamental common law principles of liberty and freedom) and Parliamentary sovereignty

82
Q

where and in what statute and words is the tension between the rule of law and parliamentary sovereignty internalised in NZ

A

Senior Courts Act 2016 - s3(2) “nothing in this Act effects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament”

83
Q

how does the common law respond to the question of whether liberty can ever be properly guaranteed when Parliament can legislate on any topic

A

principle of legality - a rule of statutory construction that is a common law method for protecting rights and freedoms

84
Q

what is the important dicta from R v Secretary of State for the Home Dept, ex parte Simms

A

“Fundamental rights cannot be overridden by general or ambiguous words”

85
Q

what is the meaning of the principle of legality

A

Parliament must squarely confront what it is doing and accept the political cost - it must legislate expressly if it wants to override fundamental rights - “there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process”

86
Q

constitutional overrides on the power to legislate remain ____ and _____ during this current period of constitutional transition as the courts haven’t had the chance to look at the question

A

indeterminate and untested

87
Q

what dicta comes from Lord Cooke in Taylor v New Zealand Poultry Board

A

“Some common law rights presumably lie so deep that even Parliament could not override them”

88
Q

common law jurisdictions have now moved to a jurisprudence of ________ rather than constitutional absolutism (Parliamentary sovereignty)

A

controlled constitutionalism

89
Q

what important dicta (2) come from Lord Hope of Craighead in the foxhunting case

A

“the rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based”

“parliamentary sovereignty is no longer, if it ever was, absolute”

90
Q

Lord Hope dismissed Parliamentary sovereignty as an _____ principle if legislation can be passed that was so unacceptable the people simply wouldn’t abide it

A

empty

91
Q

Lord Steyn discarded Dicey’s writing as an ___ ____ and mentioned a ___ ___ __ ___

A

outdated doctrine - a new hypothesis of constitutionalism

92
Q

Lord Hope in Foxhunting proclaimed a more transcendent principle which had supplanted Parliamentary sovereignty - what was this?

A

the rule of law

93
Q

Baroness Hale agreed with Lord Hope in Foxhunting and also proclaimed the ideal of the rule of law being an ultimate norm. She believed the courts would treat what with particular suspicion?

A

any attempt to subvert the rule of law - unconscionable statutes - giving courts responsibility of defining the limits of Parliament’s legislative autonomy

94
Q

what is an in extremis power

A

power in extremity

95
Q

when can the reserve power - in extremis - be exercised

A

in the last resort - only to be used in the most exceptional circumstances

96
Q

how did Lord Woolf describe the limits on Parliament’s powers of legislation

A

they are of the “most modest dimension” and “they the limits are no more than are necessary to enable the rule of law to be preserved”

97
Q

what are the two responses to the in extremis power

A
  • courts strike down the offending provision as not being law (like the US SC does when laws are unconstitutional)
  • courts disapply (refuse to apply)
98
Q

does in extremis power go beyond the principle of legality (interpretation presumption)

A

yes

99
Q

aristotle said the rule of law is?

A

preferable to that of any individual

100
Q

what are Dicey’s 3 meanings of the rule of law

A
  1. the absolute supremacy or predominance of regular law - government according to law
  2. equality before the law - administered by the ordinary courts
  3. proclaims the fundamental importance of common law rights - look to the courts for the protection of our basic rights because they develop the common law principles of liberty and freedom and so they will enforce those principles
101
Q

what is Sir Iver Jennings’ general criticism of Diceys meanings of the rule of law

A

“Dicey lived and died a Whig” - classic English liberalism of laissez-fair - general principle of non-interference in the concerns of others

  • claimed his conception was more of a political statement than a reflection of constitutional realities
  • his conception sanctified the individual - confined state role to defence of the realm, foreign relations and to maintaining internal order/civil society and taxing to do all that rather than the state doing things on peoples’ behalves
102
Q

at the end of the 19th century, rival theories of the rule of law as against Dicey emerged promoting?

A

utilitarian ends - greater role of the state as promoted by Matthew Arnold and TH Green

103
Q

Matthew Arnold and TH Green believed the pursuit of liberty was to free citizens from misery and the oppressive burdens of poverty. what was the natural instrument by which their goals could be actively achieved?

A

the State

104
Q

Dicey’s 3 meanings of the rule of law, despite criticisms, are upheld by writers. Why?

A

they articulated a standard of justice, which applies even today

105
Q

what are some criticisms of Dicey’s 1st meaning of the rule of law - supremacy or predominance of regular law

A
  • what was meant by regular law? There are now more branches of law
  • did not distinguish between arbitrary power and wide discretionary authority - a modern state can’t operate without wide discretionary authority and this power is not contrary to the rule of law - we just control these powers
106
Q

what are external statutory controls

A

4 generic statutes:

  1. NZBORA 1990 - guarantees certain rights and freedoms
  2. Human Rights Act 1993 - anti-discrimination statute which has applied to the public sector since 2001
  3. Official Information Act 1982 - rights of access to information held by public decision makers
  4. Ombudsmen Act 1975 - Ombudsmen administers OIA and anyone can make a complaint that a particular authority or decision maker has misapplied their powers of done maladministration
107
Q

what is the presumption from Bulk Gas Users Group v Attorney-General

A

Parliament did not intend decision makers to determine conclusively questions of law, including questions as to settling the scope of their own powers - these bodies will always be subject to judicial review

108
Q

what is a privative clause

A

a direction to the court to keep out - do not judicially review any decision making - most often courts get around these

109
Q

what are Lord Diplock’s 3 grounds of judicial review from CCSU

A
  1. illegality - where the decision maker is shown to have misapplied, in some way, the statutory power
  2. unreasonableness/irrationality - applies where a decision maker acts so unreasonably that no reasonable decision maker properly addressing the question could have come to that conclusion
  3. procedural impropriety - synonymous with principles of natural justice. it has two limbs: hear the other side (no person can be condemned unheard) and the rule against bias
110
Q

quote from Peters v Davison: “the essential purpose [of judicial review] is to ?

A

ensure that public bodies comply with the law”

111
Q

what is a material error in decision making

A

one that influences the outcome of the decision making

112
Q

what did Peters v Davison say about the possibility of judicial review

A

“every material error of law is reviewable”

113
Q

which common law case opened the scope of judicial review

A

Anisminic Ltd - a decision maker may be properly within jurisdiction and yet commit reviewable errors of law

114
Q

why was judicial review limited until the 1960’s?

A

the courts clung to the Doctrine of Ultra Vires (‘beyond the powers’).

Jurisdictional errors occurred when the decision maker did not have authority from Parliament to embark upon this matter and determine it at the outset and therefore courts could intervene.

non-jurisdictional errors occurred where there was authority from the outset but there were other non jurisdictional errors during the inquiry and judicial review could not be sought in this case

115
Q

the assumption of the law is that public powers are conferred for?

A

particular purposes and a discretionary power should be no broader than it reasonably needs to be in order to achieve its statutory or social purpose

116
Q

what are internal statutory controls

A

controls internal to the statute itself

117
Q

modern statutes specify ___, under ___ circumstances and for ___ purposes powers may be exercised

A

how, what, what

118
Q

what principles did Padfield v Ministry of Agriculture Fisheries & Food establish

A

a public power must be exercised for the authorised statutory purpose and not for some other extraneous purpose

AND

a decision maker will expose the decision to challenge if the decision maker has regard to an irrelevant consideration

119
Q

what happened in Padfield v Ministry of Agriculture Fisheries & Food establish

A

a statutory scheme established a complaints mechanism. the minister referred decent complaints to the complaints mechanism.

a complaint was made and the minister didn’t refer it on to avoid exposing his own misdoings - protecting the minister was an improper purpose as the purpose of the complaints mechanism was for the statutory scheme to operate properly

120
Q

statutes list ____ for the decision maker to have regard to

A

matters

121
Q

principle of law from Padfield: decision makers must have regard to ___ ___ listed in the ___ ___ and must also not be influenced by __ ___ __

A

relevant considerations

empowering section

legally irrelevant matters

122
Q

what was the main purpose (3d) of the Canterbury Earthquake and Recovery Act 2011

A

to enable a focussed, timely and expedited recovery

123
Q

which act codified the Padfield common law principle

A

Canterbury Earthquake and Recovery Act 2011 - Minister and Chief executive must ensure when they exercise their powers under this Act, they do so under the purposes of this Act

124
Q

what are political controls

A

all public decision making is answerable to Ministers responsible to Parliament for the exercise of their powers and the conduct of their departments.

Ministers are responsible collectively (as a government) and individually (for their own and their departments’ conduct)

125
Q

what are the 2 criticisms of Dicey’s second meaning of the rule of law - equality before the law

A
  1. there are inequalities between the government and the governed
  2. Dicey digged at French administrative courts but at least French citizens had a right of action against the state - English citizens at the time didn’t
126
Q

what are some examples of inequalities between the government and the governed

A
  • diplomatic immunity
  • judicial immunity
  • parliamentary privelege - free speech of MPs
  • security agencies’ special powers of surveillance and interception of private communications
  • Commissioner of Inland Revenue’s special powers to investigate tax payers and requisition their financial statements
  • sundry government officials & local government officials rights = entry onto private land
  • S27 Interpretation Act 1999 - the Crown shall not be bound by statute unless Parliament expressly enacts to the contrary
  • Crown Proceedings Act 1950 - before this, we had no right of action against the Crown in either contract or tort
127
Q

why did Dicey despise the French administrative system

A

they had special administrative courts presided over by members of the executive branch - he said this was the executive acting as a judge in its own cause (bias) however they were independent and acted just like judges so Dicey’s assertion was groundless

128
Q

what longstanding principle did Dicey overlook when saying that all are equal before the law as administered by the ordinary courts

A

the King can do no wrong - this became the Crown can do no wrong so no one had an action until the 1950 Crown Proceedings Act.

because of the injustices this caused, the petition of right was made by which citizens could bring an action and the Crown could agree to submit to the courts jurisdiction (though they couldn’t be compelled) and if the Crown was found to have done a wrong they would pay ex gratia compensation to make reparations (couldn’t have execution enforced against it)

129
Q

what is a further irony to Dicey’s second meaning of the rule of law - equality before the law - aside from the French system being the one that gave citizens a right to sue the Crown

A

today we have an immense administrative state with many administrative tribunals of all sorts of functions - even judicial functions are not immune to administrative take over (e.g. ACC taking over right to sue in the courts for personal injury). Both the Ombudsmen Act and OIA list several pages of administrative tribunals that are subject to them.

130
Q

what are the two criticisms of Dicey’s 3rd meaning of the rule of law?

A
  1. irreconcilable with the idea of Parliamentary Sovereignty - if Parliament can strike down even the most cherished of fundamental liberties, how superior are these common law protections of basic rights and freedoms?
  2. if we take it for what it says, then all countries that have since adopted Bills of Rights could no longer comply with the rule of law - it would be idle to say all the leading common law jurisdictions that have done this comply less to the rule of law because of it
131
Q

what is the positive/not criticised side of Dicey’s 3rd meaning of the rule of law - fundamental common law rights

A

it is fundamentally true that common law rights embody values deeply embedded in our legal system - notwithstanding the criticisms, this meaning tells us something about the role of the courts in our system in protecting basic liberties because the courts will restrictively interpret legislation that would restrict basic rights and freedoms under the principle of legality by reading down legislation or disapplying the doctrine of implied repeal to constitutional statutes

132
Q

what are some examples of Robin Cooke’s common law rights dicta

A
  • the right to the courts for the determination of ones rights
  • the right to be free from torture
  • questioned whether common law rights “lie so deep that not even Parliament could override them”
133
Q

what did the Simms case say about overriding fundamental rights

A

“fundamental rights cannot be overridden by general or ambiguous words”

134
Q

what did R v Pora say about overriding fundamental rights

A

Parliament must ‘speak clearly’ if it wishes to abrogate rights

135
Q

what did Laws LJ say about implied repeal in Thoburn v Sunderland City Council

A

“Ordinary statutes may be impliedly repealed. Constitutional statutes may not” and held constitutional statutes included human rights statutes

136
Q

Elias CJ adopted similar reasoning to that of Laws LJ about implied repeal in Taylor v Attorney-General when she said?

A

she rejected the Crown’s argument that protected rights under our bill of rights act may be impliedly repealed by later legislation. NZBORA is ‘properly described as constitutional’

137
Q

how can Dicey’s 1st principle of the rule of law be restated as a guide to ethical government

A

the powers of politicians and officials must have a legitimate foundation. they must be authorised by law, though such law may admit broad administrative discretions. Judicial review is a necessary corollary of the rule of law for controlling administrative error or abuse.

138
Q

how can Dicey’s 2nd principle of the rule of law be restated as a guide to ethical government

A

politicians and officials must be bound by the law as administered by the ordinary courts, even if this law be different from that applying to individuals

139
Q

how can Dicey’s 3rd principle of the rule of law be restated as a guide to ethical government

A

although common law freedoms must yield to statute, these freedoms embody essential values warranting preservation even against the legislative supremacy of Parliament

140
Q

judges do, and will continue to, decide crucial and debatable policy issues, whatever conception of ?

A

the rule of law one espouses

141
Q

to maximise the utiliity of the concept of the rule of law, the concept must ?

A

posit more than the procedural requirements of legal rules (generality, predictability, accessibility and so on)

142
Q

the rule of law is the ___ of democracy, rather than democracy being the ___ of the rule of law

A

cornerstone

2021 - public (17 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions