week four Flashcards
what are the 3 branches of government
the executive, judiciary and legislative
what is the function of the legislative
rule-making
what is the function of the executive
rule-administration
what type of law is made in Parliament
primary legislation - statutes
what is subordinate legislation
made by the bodies to whom Parliament has delegated authority to make it e.g. local council by-laws and statutory regulations effectively made by the executive
what is the judiciary mainly concerned with
dispute resolution between individuals and between individuals and the state
what is another word for state governance
constitutional power
what is Montesquieu notable for
his writing on the separation of power doctrine
why did Montesquieu say there was a need for separation?
we need to limit power because we need to limit the possibility of corruption by making sure no one body wields all the power
Montesquieu said power should act as a check to ?
power
Montesquieu’s doctrine of separation of power is not?
descriptive
what were Locke’s ideas on the reasoning for separation of powers
based on natural justice principles - no one should be a judge in their own case - an authority or body holding power should not also exercise it and judge in its own cause
what are the 4 models of separation
legal, functional, constitutional and de facto
what is the legal model of separation of powers
A separation of the branches of government brought about by law. Law creates the various bodies responsible for exercising those powers of government.
what is the functional model of separation of powers
Separation of the branches on the function(s) performed by each.
what is the constitutional model of separation of powers
Separation that goes beyond mere legal separation, because it is brought about by the operation of some supreme law
what is the de facto model of separation of powers
Describes a separation of powers that exists because there is a continued assumption and practice that people involved will respect the need for separation.
are all the branches of government legally separated in nz
there is no legal separation between the executive and legislation, but there is a legal separation between the judicial branch and others. Power is divided between only two groups: the judiciary and the political branch (legislature and executive)
how is the functional distinction between Parliament and the Executive made since members of the executive also have to be members of parliament
they have to wear different hats, and exercise executive power while acting as a minister and their legislative power when they are acting as a parliamentarian
one must be occupying the appropriate role in order to exercise?
the corresponding power
do we have a direct application of constitutional separation of powers in nz
no, we do not have an overarching codified constitution that divides up the powers
how is separation ensured between the judiciary and the Ministry of Justice (executive)
the MOJ provides administrative support (providing buildings, pens, staff, tea bags)
judges have to decide between themselves who hears what and when so that the executive can’t facilitate it so that certain judges could hear certain cases in a certain type of way to benefit the executive
does the underlying rationale of Montesqeuieus doctrine of power survive
yes - it is about securing the same sort of civil liberty
what are the 3 requirements of the pure Montesquieuan doctrine of separation
- the same persons should not be part of more than one organ/institution of government
- one organ should not control, check or interfere with the work of another
- one organ should not exercise the functions of another
do the 3 principles of the pure montesquieuan form of the doctrine survive
no
what is the relationship in membership between the executive and legislative
the members of government are recruited directly from members of parliament - dual membership
how many members form the executive
26 - around 20% of the legislative organ
if you are a member of parliament, can you be be employed by the executive in any way
no
what is an overlap between the executive and legislative branches
the Governor General is simultaneously part of both branches
government ministers are accountable to?
Parliament
is there no membership overlap between legislative and judicial relationship
no, there is no membership overlap
could a judge also be a member of parliament
no
parliament is supreme. statute law trumps?
common law
