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The Executive Continued Flashcards

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1
Q

How do conventions work within the executive?

A

The Executive branch is created and run through many different conventions, with these activating in certain circumstances, or underlying all operations.

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2
Q

What are the characteristics and nature of executive conventions?

A
  • Facilitate development without changing the law.
  • Restrain or modify the exercise of legal power.
  • Promote responsible government.
  • Some are precise, others vague.
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3
Q

What are Primary Conventions?

A
  • The Sovereign’s powers are exercised on and in accordance with Prime Ministerial advice.
  • Appointment of Prime Minister – the person who commands the confidence of the House.
  • Appointment of Ministers – those whom the Prime minister nominates.
  • Parliamentary Ministry – Ministers must be MP’s.
  • Resignation of a ministry – a government defeated (at a general election or by a vote of no confidence) must resign.
  • Caretaker Government.
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4
Q

What is a caretaker government?

A

During changes of government, the incumbent remains in office in a caretaker capacity until a new government is appointed.

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5
Q

What are the roles of a caretaker government?

A
  • Where a change of government is clear, the caretaker government must act on the advice of the incoming government on matters too significant to delay.
  • Where is it not clear who will form the next government, the caretaker must defer significant matters, or consult with the other parties if delay is not possible.
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6
Q

What are the conventions of the Executive Council, Cabinet & Ministers?

A

Existence of Cabinet.
- Some ministers may be Ministers outside Cabinet… though all are members of the Executive Council.

Collective responsibility (confidentiality and one voice).

Ministers are individually accountable to their House for their portfolios and the actions of departmental officials.
- Their duty is to explain, not necessarily to resign.

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7
Q

Other Important Conventions?

A
  • Public service neutrality.
  • Independence of the Attorney-General from Cabinet interference.
  • Secrecy of the budget.
  • Parliamentary “Conventions”:
    - Parliament should not enact legislation that is oppressive or retrospective.
    - Parliament’s Speaker is impartial.
    - MP’s must not impugn the judiciary.
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8
Q

Are conventions law?

A

No.

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9
Q

Are legal remedies available for a breach of convention?

A

No. Conventions are not law so legal remedies are not available for their breach.

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10
Q

Why are conventions important?

A

Conventions “may play an integral part in judicial reasoning”.

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11
Q

What restraints may be placed on conventions?

A

Conventions may be acknowledged, supplemented, or restricted by statutes.

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12
Q

Examples of implementation of conventions into statute?

A

Official Information Act 1982, s 9(2)(f): good reason for withholding exists if it is necessary to “maintain the constitutional conventions for the time being which protect … the confidentiality of communications by or with the Sovereign … collective and individual ministerial responsibility … the political neutrality of officials … the confidentiality of advice tendered by Ministers …”

Constitution Act 1986, s 3A: GG can act on advice given at an EC meeting he did not attend due to a “necessary or reasonable cause”.

Constitution Act, s 16: a bill becomes law on assent.

State Sector Act 1998, s 1A: purpose is to promote and uphold a State sector system that, inter alia, “maintains political neutrality” .

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13
Q

What are the cabinet conventions?

A
  • Cabinet Office Manual.
  • Confidentiality.
  • Collective responsibility.
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14
Q

Why is collective responsibility important?

A

“The House expresses its confidence in the collective whole of government, rather than in individual Ministers. Similarly, the Governor-General, in acting on ministerial advice, needs to be confident that individual Ministers represent official government policy.”

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15
Q

What is collective responsibility?

A

“Once the Cabinet makes a decision, Ministers must support it… regardless of their personal views and whether or not they were at the meeting concerned.”

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16
Q

What are the steps / conventions for changes of government?

ask tutor if these are conventions?

A
  • The term of Parliament ends three years or earlier (Constitution Act, s 17).
  • The PM requests a dissolution and the Governor-General follows that advice.
  • Parliament is dissolved (Constitution Act, s 18).
  • Business of the government slows because all MP’s are electioneering.
  • Election is held in accordance with the Electoral Act 1993.
  • Caretaker convention applies
  • A new group will form a majority (usually coalitions) and they will be appointed as the government
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17
Q

What sets out the conventions for changes of government?

A

The cabinet manual

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18
Q

Is the process of the government forming political or apolitical? Why?

A

Political - the decision to form a government must be arrived at by politicians.

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19
Q

When will the caretaker convention apply?

A
  • When it is not clear who will form the next government
  • When it is clear and the new government is not yet in office
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20
Q

When a government does or is about to loose confidence / support, what should it do?

A

The government should resign

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21
Q

What are reserve powers?

A

Powers to act withour ministerial consent or against a minister’s advice.
“These powers to act without or even against ministerial advice…”

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22
Q

When would reserve powers be used?

A

Only on extreme situations.
“These powers to act without or even against ministerial advice are reserved for the most extreme situations and with the exception of the appointment of a Prime Minister following an election, no New Zealand Governor-General has ever needed to use them”.

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23
Q

Example of when reserve powers may be used?

A

If the PM advised a dissolution of Parliament, rather than resign or face a no confidence vote.

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24
Q

Cases on Government Formation/Dissolution Going Wrong???

A

Canada [1926] The Case of “Byng/King”
Australia [1975] The Case of “Kerr/Whitlam”
Canada [2015] The Case of “Jean/Harper”

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25
Q

CONTINUE FROM HEREEEEEEE

A
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26
Q

What is a treaty?

A

A treaty is an agreement between multiple parties put into a semi-legal form.

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27
Q

What were treaties historically?

A
  • Agreements between states, made by governments, are part of international law.
  • Had a role in colonialism and the acquisition of territory. (Conquest, discovery, settlement, cession).
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28
Q

Example of historical treaties

A
  • Treaty of cession were used in the USA and Canada. Having treaties with different native American bands.
  • Treaty of Waitangi or Tiriti o Waitangi was originally a treaty of cession. (Waitangi Tribunal, He Whakaputanga me te Tiriti – The Declaration and the Treaty (2014): “the Rangatira who signed te Tiriti in the Bay of Islands and Hokianga did not cede their sovereignty”).
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29
Q

What is a bilateral treaty? In which situations do they commonly arise?

A

An agreement between two parties. Free Trade Agreements are the most common nowadays.

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30
Q

What is a multilateral treaty? In which situations do they commonly arise?

A

Agreement between multiple parties. Many multi-laterals are negotiated at conferences, Non-Government Organisations frequently participate.

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31
Q

What does it mean for declarations to be “soft law”?

A

Declarations are not directly binding but consensus-building.
- United Nations Declaration on the Rights of Indigenous Peoples.
- Rio Declaration on Environment and Development.
- 2030 Agenda for Sustainable Development.

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31
Q

Vienna Convention on the Law of Treaties [1969, 1980]

??????????????????????????????????

A

Vienna Convention on the Law of Treaties [1969, 1980]
Agreements between states:
Recognition.
McGee: for New Zealand, from 1919, following the signing of the Treaty of Versailles.
Has two dates, the date of signing and the date it comes into force.
States must consent to be bound.
All states are sovereign and equal.
Signing and, and for multilateral treaties, ratification or acceptance.
Entry into force.
Pacta sunt servanda – binding on states:
International Court of Justice, Law of the Sea Tribunal.
Prior consent to be bound.
CoPs and MoPs and committees.
Conference of Parties & Meeting of Parties.
MoPs are for protocols.
CoPs are general meetings.

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32
Q

What do bilateral agreements have a role in facilitating?

A

Cession and peace.

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33
Q

What are some limits against treaties?

A

Prerogative, inherent, common law.

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34
Q

Who is in charge of who can enter treaties since 1688?

A

Parliament.

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35
Q

Can prerogative powers be exercised inconsistently with legislation?

A

No.

36
Q

What is “Dualism”?

A

For treaties to have effect we must domestically incorporate them into our law. Treaties do not of themselves confer powers, rights or duties enforceable in domestic New Zealand Law.

37
Q

What are some dualist countries?

A

Australia, Canada, India, Israel, United Kingdom, New Zealand.

38
Q

What are some monist countries?

A

Austria, Chile, China, Columbia, Egypt, France, Germany, Japan, Mexico, Netherlands, Poland, Russia, South Africa, Switzerland, Thailand, USA.

39
Q

What is Monism?

A

Opposite of dualism. Treaties become part of domestic law without domestic incorporation.
- “ …the essence of the monist approach is that a treaty may, without legislation, become part of domestic law once it has been concluded in accordance with the constitution and has entered into force for the state.”

40
Q

Who is in charge of putting a treaty into NZ law?

A

Parliament.

41
Q

What things will parliament need to make clear when incorporating a treaty?

A

Implications?, rights and duties.

42
Q

Is there a convention saying that New Zealand’s treaty-making practice is to ensure that domestic law is compatible with a treaty’s obligations?

A

Maybe.

43
Q

Does the government ever get public input into entering treaties?

A

Yes, they will sometimes call for public participation.

44
Q

Since 1999 what has been the practice for multilateral treaties in NZ? Where is this recognised?

A

The government will present most multilateral treaties to the House for examination prior to signature or ratification and acceptance, or before withdrawing or denouncing them.

  • Recognised in the House’s Standing Orders and included within the Cabinet Manual.
  • Exception for urgency – the treaty should be presented to the House as soon as possible after becoming binding.
45
Q

When will a bilateral treaty be presented to the house before signing?

A

If the bilateral treaty is of particular significance.

46
Q

What role do NIA and select committees have in treaties?

A
  • A critical component of presentation is the national interest analysis, which “must fairly expose the case for and the case against entering into the treaty”.
  • Treaties are referred to Foreign Affairs, Defence and Trade Committee, which may pass some on to other Select Committees, depending on subject matter.
  • Select committee reports & NIA are set down as a MP’s order of the day and can be raised in debate in the House.
  • Cabinet Office Manual: government should allow 15 sitting days minimum before introducing any legislation needed to make NZ Law compatible with the treaty, so that the Committee’s/House’s conclusions on whether joining the treaty is justified can be made available to the government beforehand.
  • Convention: Parliament should be allowed a limited time to examine a proposed treaty before the government ratifies.
47
Q

Is treaty incorporation in legislation direct or indirect?

A

Can be either.

48
Q

Example of direct incorporation of a treaty into legislation?

A
  • Law of the Sea Convention.
  • UNFCCC, Kyoto Protocol and Paris Agreement on Climate Change.
  • Te Tiriti o Waitangi.
49
Q

When may a treaty be indirectly incorporated into legislation?

A

Some treaties are so important that Courts may presume that:
- Parliament intends to legislate consistently with them, unless it says otherwise (Treaty of Waitangi).
- Parliament intends statutory powers it confers on others (ministers) to be exercised consistently with them (International Covenant on Civil and Political Rights, First Optional Protocol Convention on the Rights of the Child in Tavita v Minister of Immigration 1993).

50
Q

Te Heuheu Tukino v Aotea District Māori Land Board [1941] NZLR 590

A

Facts:
- Native Purposes Act 1935, s 14; put a charge on Ngāti Tūwharetoa land to settle a debt owed by the Land Board, which managed the land.
- Te Heuheu Tukino claimed the Act breached the Treaty of Waitangi… in particular Article 2 of the English version: rights to full, exclusive and undisturbed possession of/tino rangatiratanga over land.

Council Decided:
- “It is well settled that any rights purporting to be conferred by such a treaty of cession cannot be enforced in the Courts, except in so far as they have been incorporated into the municipal law”

Historical Relevance:
- Any claim must rest on statute, not treaty. The Treaty is not enforceable when seated outside Legislation.

51
Q

Where is te tiriti / the treaty referenced in general law? (examples)

A
  • Fish Protection Act 1877, s 8 (repealed)
  • Fisheries Act 1983, s 88(2) (repealed)
  • State-Owned Enterprises Act 1986, s 9
  • Conservation Act 1987, s 4
52
Q

Which year and in which statute was the treaty finally incorporated into statute.

A

Fish Protection Act 1877.

53
Q

How do commissions of inquiry and tribunals differ from the courts?

A

They can only make recommendations, not decisions.

54
Q

Does the level of public nature change with different tribunals?

A

Yes.

55
Q

What do tribunals do?

A
  • Deciding disputes between citizens: HRRT (discrimination, breach of privacy).
  • First instance determination of disputes between citizen and state: WT.
  • Reviewing/appealing administrative decisions: Refugee Status Appeals Authority.
  • Professional: Law Society.
  • Licensing: Gambling.
  • Investigating matters for Ministers or Parliament: Police Complaints Authority.
56
Q

What does Simon Mount explain comissions of inquiry to be?

A
  • Inquisitorial, not adversarial and determine own procedure.
  • Appointed by Government and report (with recommendations) to Government.
  • On anything.
  • Around since the Middle Ages, an act of prerogative, today under Inquiries Act 2013 or own Act.
57
Q

What is the Waitangi Tribunal?

A

A permanent statutory commission of inquiry set up by the Treaty of Waitangi Act 1975.

58
Q

What are the core ideas of the Waitangi Tribunal?

A
  • Designed to scrutinise Crown action that is inconsistent with Treaty “principles”.
  • Keeping protest off the streets and out of the Courts: a “way of avoiding” Māori claims.
  • Shifted the middle ground.
59
Q

Which act established the Waitangi Tribunal?

A

Treaty of Waitangi Act 1975.

60
Q

Does the Treaty of Waitangi Act 1975 bind the crown?

A

Yes, section 3.

61
Q

What are the functions of the Waitangi Tribunal under the Treaty of Waitangi Act 1975?

A

Functions (s 5):
- (1)(a) to inquire into and make recommendations on s 6 claims.
- (1)(aa) - (ad) relate to the “clawback regime”.
- (1)(b) to examine and report on, proposed legislation referred under s 8.
- (2) Have regard to the 2 texts of the Treaty set out in Schedule 1 and have exclusive authority to determine the meaning and effect of the Treaties and to decide issues raised by the differences between them.

62
Q

What is the Treaty Settlement process?

A
  1. Te Arawhiti.
  2. The Red Book.
  3. Apology, financial transfer, return of land, other cultural redress.
63
Q

What does s 6 Treaty of Waitangi Act 1975 say?

A

(1) Where any Māori claims that he or she, or any group of Māori’s of which he or she is a member, is or is likely to be prejudicially affected -
(a) by any ordinance of the General Legislative Council of New Zealand, or any ordinance of the Provincial Legislative Council of New Munster, or any provincial ordinance, or any Act (whether or not still in force), passed at any time on or after 6 February 1840; or
(b) by any regulations, order, proclamation, notice, or other statutory instrument made, issued, or given at any time on or after 6 February 1840 under any ordinance or Act referred to in paragraph (a); or
(c) by any policy or practice (whether or not still in force) adopted by or on behalf of the Crown, or by any policy or practice proposed to be adopted by or on behalf of the Crown; or
(d) by any act done or omitted at any time on or after 6th February 1840, or proposed to be done or omitted, by or on behalf of the Crown.
And that the ordinance or Act, or the regulations, order, proclamation, notice, or other statutory instrument, or the policy or practice, or the act or omission, was or is inconsistent with the principles of the Treaty, he or she may submit that claim to the Tribunal under this section.

64
Q

What does Harris name as the principles of the treaty?

A
  • Partnership.
  • The Crown acquired the right to make laws, and the duty to protect Māori.
  • Active protection.
  • Compromise is needed on both sides.
  • Consultation.
  • The Crown cannot free itself from treaty duties by passing them on.
  • Rangatiratanga is guaranteed and includes managing resources and other taonga in accordance with tikanga. (Taonga includes tangibles (fishing grounds, land) and intangibles (te reo Māori, tikanga)).
65
Q

S 6AA Treaty of Waitangi Act 1975?

A

From 1 September 2008 no one can submit, and WT has no jurisdiction to inquire into, an “historical claim”.
A claim that arose before 21 September 1992.
Focus now = contemporary claims

66
Q

How has the jurisdiction of the Waitangi Tribunal changed over time?

A

Waxing and waning jurisdiction: 1975 – 1975; 1985 – 1840; 2008 – 1992.

67
Q

s 7: trivial, vexatious, frivolous.???

A
68
Q

Section 6(3) Treaty of Waitangi Act 1975?

A

If the Tribunal finds any claim well-founded it may, having regard to all the circumstances, recommend to the Crown that action be taken to compensate for or remove the prejudice or to prevent other persons from being similarly affected in the future.

69
Q

Section 6(4A), Section 6(7) and Section 6(8) Treaty of Waitangi Act 1975?

A
  • s 6(7) Tribunal has no jurisdiction in respect of commercial fishing/fisheries (claims settled).
  • s 6(8) Tribunal has no jurisdiction in respect of Schedule 3 settlements.
  • s 6(4A) Tribunal cannot recommend the return of private land.
70
Q

Section 8 Treaty of Waitangi Act 1975?

A

Jurisdiction of Tribunal to Consider Proposed Legislation
(1) The Tribunal shall examine any proposed legislation referred to it under subsection (2) and shall report whether, in its opinion, the provisions of the proposed legislation or any of them are contrary to the principles of the Treaty.
(2) Proposed legislation may be referred to the Tribunal -
(a) in the case of a Bill before the House of Representatives, by resolution of the House:
(b) in the case of any proposed regulations or Order in Council, by any Minister of the Crown.
(3) The Tribunal’s report shall be given -
(a) in the case of a Bill, to the Speaker of the House:
(b) in every other case, to the person or body who referred to proposed regulations or Order in Council to the Tribunal.
(4) A copy of every report made by the Tribunal under this section shall be given by the Tribunal to the Minister of Māori Affairs and shall be laid before the House of representatives as soon as practicable.

71
Q

What is privacy?

A

“Is a fundamental right that enables us to create… and manage boundaries to protect ourselves from unwarranted interference in our lives, which allows us to negotiate who we are and how we… interact with the world around us and… is an important element of giving us control over who knows what about us” - Privacy International “a fiercely independent charity”

72
Q

How does our Australian Source explain privacy?

A
  • To be free from interference and intrusion.
  • To associate freely with whom you want.
  • To be able to control who can see and use information about you.
73
Q

What is the key act surrounding Privacy?

A

The Privacy Act 2020.

74
Q

Privacy Act 2020 s 3 purpose?

A

The purpose of this Act is to promote and protect individual privacy by… providing a framework for protecting an individual’s right to privacy… and giving effect to internationally recognised privacy obligations and standards.

75
Q

What are internationally recognised privacy obligations and standards?

A

These can be OECD Guidelines and the International Covenant of Civil and Political Rights.

76
Q

What kind of entity is the privacy commissioner?

A

Established by s13 as a crown entity.

77
Q

What are some of the functions of the privacy commissioner?

A
  • devise ministers or “an agency” on any matter relevant to the Act.
  • Promote understanding and acceptance of the IPP (Information Privacy Principles) and their objectives;
  • Examine proposed legislation or government policy that may affect privacy;
  • Inquire into matters including any enactment or any law, or any governmental practice or procedure, if it appears that privacy is being, or may be, infringed;
  • The functions and duties conferred under this Act. (Investigating complaints about interference with privacy).
78
Q

What are the sections 20 and 21 duties of the privacy commissioner?

A

The commissioner must act independently and must have regart to / take into account / consider:
- privacy interests / other human rights and interests, including the free flow of information in society and objective efficiency of government and businesses.
- international obligations
- cultural perspectives on privacy
- international guidelines on the protection of individual privacy
- IPPs (Information Privacy Principles)

79
Q

What are Information Privacy Principles s 22?

A
  • personal information only collected when necessary
  • personal information should be collected directly from individual
  • individuals should be informed of the purpose of collection and their rights to access this information.
  • Collection of PI by Agencies should be by lawful and fair means.
  • Agencies shall store personal information safely and securely.
  • Rights of access to correct personal information.
  • Agencies must ensure the PI is up to date & accurate before use / disclosure.
  • PI not to be kept longer than necessary.
  • PI only used for purpose collected.
  • PI only disclosed in limited circumstances
  • Agencies can only send PI overseas if it will be protected.
  • Unique identifiers used, to minimise risk of misuse.
80
Q

When may PI (Personal Information) be disclosed?

A

When authorised or anonymised.

81
Q

What complaints / investigations can be made about a breach of privacy?

A

Interference With Privacy s 69.
- Breach of a principle + Loss / damage / “without proper basis”.
- A refusal of a request under IPP 6 or 7 “without proper basis”.

82
Q

????
????
?????
check last one and continue here

A
83
Q
A
84
Q
A
85
Q

Who are some key Officers of Parliament?

A
  • Ombudsman
  • Controller and Auditor-General
  • Parliamentary Commissioner for the Environment
86
Q

Who is the Controller and Auditor-General?

A
  • Public Audit Act 2001.
  • Appointed by the GG on recommendation of the House.
  • Independent.
  • Conducts financial and performance audits of public entities.
  • Inquiries into their use of resources, either on request or of their own motion.
87
Q

Who is the Parliamentary Commissioner for the Environment?

A

Appointed by the GG on recommendation of the House.

Functions: Environment Act 1986 Section 16.
- Review government agencies / processes managing natural and physical resources.
- Investigate the effectiveness of environmental planning / environmental management by public authorities.
- Investigate any matter where the environment may be or has been adversely affected and advise the appropriate public body of preventive measures or remedial action that should be taken.
- Report to the House on any petition / Bill / etc. that may significantly effect the environment.
- Inquire into any matter that has or may have substantial / damaging effect on the environment.

88
Q
A

Public Law (12 decks)

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