The Legislature - Constitution

Question 1

What is manner and form?

Answer 1

Manner and form is the legislative mechanism by which parliament can entrench certain provisions of certain acts.

This is to add constitutional emphasis to the selected provision.

Question 2

What is the name of the colonical case from Ceylon and what does it stand for with regards to manner and form?

Answer 2

Bribery Commissioner v Ranasinghe

British colony of Ceylon ordinarly repeals safeguards for their judiciary. However, manner and form put in place by the British. English Privy Council upholds manner and form. Parliamentary soverighty is not an issue as Ceylon is not soverign in addition to the fact that the courts cannot ignore changes to the rules of the game, dicey ignored.

Question 3

What is the name of the colonial case from South Africa and what does it stand for?

Answer 3

Harris and Donges

South African parliament, via simple majority, modifies the racial voting qualifications to create Apartheid. However, racial voting rules subject to manner and form, SA argues that they are not reducing the ability to vote but rather creating a new roll, seperate but equal.

UK court rules that manner and form is uphled, the substance of the change isn’t necessarily as important as the process of change. In this regard, they were acting as a constitutional assembly on a Constitutional matter, manner and form should apply where applicable.

Question 4

What does the case of Westco Lagan say in Obiter with regards to upholding manner and form in NZ?

Answer 4

In Westco Lagan, the applicants attempted to stop a bill from reaching assent. The court ruled according to BRP, that the substance and workings of parliament are of no judicial conern unless with regards to the process and rules of the game. In those cases, manner and form will be upheld

Question 5

What is the statutory basis and issue of Ngaronoa v AG?

Answer 5

Sentenced Prisoner Amendement Act 2010 bans all prisoner voting and does so by modifying who qualifies for voting under section 74 of the electoral act.

The issue is whether section 268(1)(E), manner and form requiring super majority, covers all of section 74 or just the referenced voting age.

If all of 74 is covered then the act is invaid

Question 6

What is the majorities view as outlined by Justice Ellen Frances in Ngaronoa?

Answer 6

Justice Ellen Frances and the majority hold that there is no conflict between manner and form 268 and the new act on the basis that the references to section 74 in 268 and age are unified by the prescription of 18 years, meaning only age.

They further aruge that earlier manner and form protected only certain aspects such as age, and that there is no authority to expand that to all of 74

Question 7

What is Elias CJ’s dissenting view in Ngaronoa/

Answer 7

Elias CJ is of the view that section 74 is not unified with the prescription on age but is another reference in it of itself. She holds that on that basis, 268 protects all of 74 in addition to voting age there and in the subsequent references.

She takes a principle of legality ish approach, wherein the case is ambigous, read it to favour the right.

Question 8

What is the only NZ example of manner and form?

Answer 8

Section 268 of the NZ Electoral Act 1993

This provision is the only one in NZ protected by manner and form. It requires a 75% majority to amend or repeal

Question 9

What was the principle outlined in British Railway Board v Pickin?

Answer 9

The principle outlined is known as the comity principle and it prevents the courts from commenting on the workings or substances of parliament, even if parliament makes a mistake.

Question 10

What is the doctrine of implied repeal and what are is its referenced sources?

Answer 10

The doctrine of implied repeal states that wherein circumstances two acts conflict, the later act prevails with regards to the conflicted provisions.

As outlined in Vauxhall Estates and Ellen Street Estates

Question 11

How can the courts protect constitutionally important legislation that are not protected by manner and form?

Answer 11

By use of the principle of legality adapted for constitutional documents, as laid out in Thoburn v Sunderland City Council.

Question 12

What is the factual background behind Thoburn v Sunderland City Council?

Answer 12

Fruit vendors were selling their fruits in imperial measurements, which is a crime under the European Communities Act 1972 (EU law) but permissible under the Weights and Measurement Act 1985 (UK law)

Question 13

What were the defendants argument in Thoburn?

Answer 13

They argued that Weights and Measurements Act 1985 permitted the sale of fruits in either metric or imperial measurements.

That under the doctrine of implied repeal, it is the later act and its conflicted provision should prevail over the EC Act 1972.

Question 14

What was Lord LJ’s response and ruling to the defendants argument in Thoburn?

Answer 14

Lord LJ rejected the defendants arguments in that the doctrine of implied repeal does not extend to the EU law in question, the EC Act, as it is a constitutional statute and therefore any later act that seeks to displace its provisions must do so expressly.

Question 15

How did Lord LJ differentiate and characterise this constitutional distinction?

Answer 15

Lord LJ devised a hierarchy of statutes, with ordinary subject to the pro-tanto repeal and constitutional statutes requiring express wording.

He characterised a readapted principle of legality but for constitutional documents instead of common law rights

Question 16

The European Communities Act was criticised as a foreign limitation of parliamentary sovereignty, how so?

Answer 16

The European Communities Act contains a Henry VIII clause elevating it above domestic laws in the countries it incorporated.

Having been ratified by the British Parliament in 1972, it binded future parliaments by remaining absolute in the absence of express wording.

Question 17

How did Lord LJ respond to this criticism of the ECA as a foreign limitation of Parliamentary Sovereignty

Answer 17

Lord LJ rejected that notion and maintained that nothing limited parliamentary sovereignty bar the common law.

He subsequently characterised the requirement of express wording (constitutional statutes) as a common law development and in the same vein as Pro-tanto repeal and the principle of legality.

Therefore it was not an EU law that limited parliament but the common law.

Question 18

What constitutes as a constitutional statute in order to be afforded express wording protection?

Answer 18

Lord LJ expressed two requirements:

1. If it conditions the legal relationship between citizen and the state in a general overarching manner
2. Enlarges or diminishes fundamental rights

They were envisioned as one in the same.

Question 19

What was the final ruling in Thorburn v Sunderland City Council? (Summary)

Answer 19

Lord LJ wrote that the doctrine of implied repeal could not elevate the W&M Act 1985 over EC Act 1972 despite coming later as the latter is a constitutional document that requires express wording which the former did not have.

He justified the creation of express wording protection by creating a hierarchy of statutes, ordinary and constitutional, with constitutional affording express protection.

Constitutional is defined as anything that affects the relationship between the state and it citizens, which the EC Act meets.

Question 20

What the are contentious legislation at stake in R v Poumako and R v Pora?

Answer 20

Crimes Amendment Act 1999 - Defines home invasion and increases penalties for other crimes in addition to home invasion

Criminal Justice Amendment Act 1999 (passed 15 days later)

• Section 2(4) modifies Section 80 to mandate the imposition of minimum imprisonment and for that to apply retrospectively
• Section 4(2) protects against retrospection

Question 21

What are the facts of R v Poumako?

Answer 21

Home invasion crimes spurs moral panic. CA Act passed at start of July to increase penalties for home invasion. CJA Act passed 15 days later to impose even tougher restrictions on parole and for that to apply retrospectively.

Poumako commits violent home invasion before passage but sentenced after the passing of the aforementioned acts.

Question 22

What was complaint and outcome of the case in R v Poumako?

Answer 22

Poumako complained that a minimum imprisonment sentence should not apply to him because at the time of his crime the penalty did not exist, that retrospection is unfair.

The court rejected his plea on the basis that his crime was so severe the maximum penalty mandated by the afore acts would have been applied anyways without being mandated.

Question 23

What is the essential issue in R v Poumako?

Answer 23

The conflict between section 2(4) and 4(2) of the same act. One enforces retrospection while the other protects against it.

Parliament is clear it wants retrospection in face of longstanding principles protecting against thus why in the same act it protects against it.

Should the court enforce retrospection or stand up to parliament?

Question 24

What was the approach of the majority in obiter for R v Poumako?

Answer 24

The majority adopt a temporal approach.

They highlighted the immense legal background against retrospection found in international law, common law and statutory law. The emphasis to protect rights is found in section 6 of the BORA. There must be some protection.

Principle of legality is clear and retrospection clearly worded. There must be some retrospection.

The court comprises on that basis that retrospection be given the most restrictive interpretation so that both the right and the act can be effected.

Retrospection back to 15 days, the passing of the first act when home invasion as a concept was defined and not further.

Question 25

What is Justice Henrys dissent in obiter in R v Poumako?

Answer 25

Justice Henry reject the majorities compromise on the basis that the court cannot change the meaning of the passed act when parliament did not express a timeframe for the retrospection, and to do with only respect to home invasion when other crimes had their penalties increased also is illogical.

Retrospection was what parliament desired, the court cannot miscontrue words to satisfy all parties. The court should accept that parliament wanted retrospection and accept that it is inconsistent.

Question 26

What was the section 5 argument advanced by Justice Henry?

Answer 26

Justice Henry voice possibility to the option of using section 5 of the BORA which required the Crown to justify their limitation of protections which they could not possibly do and force the Crown to admit wrongdoing and extend the penalties to all other listed crimes in the change

Question 27

What was Justice Thomas thoughts on the temporal approach of the majority?

Answer 27

Justice Thomas rejected the 15 day approach on the basis that doing so will change the meaning of legislation which parliament is not entitled to do.

Section 6 of the BORA only requires effect of rights if the nature of conflict is unclear but parliament has made it clear it wants to override. To limit section 2(4) is paramount to changing its meaning and against parliamentary sovereignty.

Statutory interpretation makes clear the intent of parliament and adopting an alternative meaning would fly in the face of that intent. The right in question is still limited and undermines integrity

The use of happenstance as a stopgap undermines judicial integrity

Question 28

Justice Thomas makes it clear that trying to please all parties is not viable in R v Poumako and a declaration of inconsistency is needed. What is his reasoning?

Answer 28

Court cannot invalidate legislation but a declaration would not do that as it is only a strongly worded statement.

BORA requires some judicial powers (S5) to protect rights (S6) and short of invalidation that is a declaration otherwise the courts role would and null and void.

Declaration would make up for the shorting-comings of S7 reports which are limited to the start of bills.

A declarative ability would enhance the legal relationship between parliament and the courts, enshrined in principle in the BORA

Question 29

How does Justice Thomas deal with criticism that his reasoning for a declaration is a move against parliamentary sovereignty?

Answer 29

Parliament can still do whatever it likes, it can deny, ignore and legislate contrary to rights. A declaration is just a statement that does not infringe of the roles of branches.

Substance of bill is not commented on but rather the consistency of the bill as a whole.

Option will be rarely exercised and other jurisdictions have demonstrated that such an ability is no cap.

Question 30

What is the factual background and issue of R v Pora?

Answer 30

Pora is convicted in 1994 of a crime he committed in 1992, but in 1993 a law is passed introducing minimum imprisonment but with no retrospection. Sentenced accordingly but granted retrial in 2000 after amendments to minimum imprisonment in 1999. Reconvicted and now subject to new penalties which did not exist at the time of his crime.

The issue is whether retrospection applies to Pora even though the power for that crime did not exist and therefore not something retrospection can even apply to.

Question 31

What is the consensus and constitutional issue in R v Pora?

Answer 31

They all agree that retrospection cannot apply to a power that did not even exist at the time of the crime, this is accepted by all parties.

The constitutional issue at stake is which conflicting provision, 2(4) or 4(2) should prevail, thereby entertaining the issue whether or not there is any retrospectivity at all.

The court sets aside the obiter argument for 15 days and tries something new.

Question 32

What is Chief Justice Elias counter-argument against statutory interpretation that favours 2(4)’s retrospectivity in Pora?

Answer 32

Elias CJ argues that 4(2) prevails over 2(4) and there is no retrospectivity at all.

She rejects the mechanical application of the rules of common law interpretation that would have resulted in 2(4)’s elevation. Arguments of specificity and later in time are too mechanical and arbitrary to apply to such a constitutionally important issue.

It is not what degree rights are limited but whether they are limited at all. She argues for a principle of legality with regards to constitutional rights and a change to the doctrine of implied repeal

Question 33

What is Elias CJ’s dual argument in modifying the implied repeal and instituting the principle of legality in Pora?

Answer 33

She argues that in order for parliament to legislate against fundamental rights it must do so clearly, expressly or necessary implied, as required by section 6 of the BORA. In addition, having considered that, section 7 of the Interpretation Act trumps common law interpretation for retrospectivity as S7 protects against that.

Question 34

How does Elias CJ counter argument that her principle of legality limits parliament sovereignty?

Answer 34

She argues that there is no limitation from either the common law or statute. Section 6 of the BORA is stipulation that the parliament itself must give some effect to and therefore it is parliaments own standard of express words which is given effect here.

Question 35

What is Keith J view on R v Pora?

Answer 35

Keith J adopts the solicitor-generals argument in that if there is any retrospection if only applies back to when that power was introduced, before the date of Pora’s crimes.

The text of section 2(4) and the modified section 80 make it clear that it only extends to when that power was conceived.

Should retrospection prevail there is scope after 93 which is most appropriate.

Rejects the sentencing judge’s wide interpretation, the power did not exist in another form before 93 and is its own species.

Question 36

With regards to Keith J, does he comment on which provision should prevail in Pora? What was his thoughts on changing implied repeal?

Answer 36

No, he maintains trust in the SG’ argument that change is coming and did not remark on the constitutional ramifications of one or the other.

He did however, comment extensively on the Elias CJ argument of changing implied repeal. He disagrees and argues that statutory interpretation is clear that common law interpretation has some place in the method, that they are not mechanical as they reflect day-to-day reasoning and to change implied repeal would be tantamount to a parliamentary magic word formula which would hinder parliament, especially incases of clear intent.

Question 37

What is Thomas J approach to the constitutional issue in Pora and is it similar to his approach in Poumako?

Answer 37

He abandons the declarations approach he proposed in Poumako and concurs with Elias CJ in adopting a rights based approach?

Question 38

What is Thomas J new rights centred approach in Pora?

Answer 38

He argues that there is no retrospectivity in applying 4(2) over 2(4).

He adopts the principle of legality rather than a declaration on the basis that parliament can do whatever it likes but only expressly, which goes further than Elias.

He argues that implied repeal and the common law method of interpretation does not apply in statues of constitutional significance. A purposive approach should be taken in tandem with the principle of legality.

Question 39

What is the case of Boscawen v AG?

Answer 39

Electoral Finance Bill limits freedom speech by limiting how and when campaigns play out. No section 7 report given for the BORA conflict.

Courts ruled that they could not review that section 7 report citing the comity principle. The AG was acting in a parliamentary capacity under comity