week four

Question 1

what are the 3 branches of government

Answer 1

the executive, judiciary and legislative

Question 2

what is the function of the legislative

Answer 2

rule-making

Question 3

what is the function of the executive

Answer 3

rule-administration

Question 4

what type of law is made in Parliament

Answer 4

primary legislation - statutes

Question 5

what is subordinate legislation

Answer 5

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

Question 6

what is the judiciary mainly concerned with

Answer 6

dispute resolution between individuals and between individuals and the state

Question 7

what is another word for state governance

Answer 7

constitutional power

Question 8

what is Montesquieu notable for

Answer 8

his writing on the separation of power doctrine

Question 9

why did Montesquieu say there was a need for separation?

Answer 9

we need to limit power because we need to limit the possibility of corruption by making sure no one body wields all the power

Question 10

Montesquieu said power should act as a check to ?

Answer 10

power

Question 11

Montesquieu’s doctrine of separation of power is not?

Answer 11

descriptive

Question 12

what were Locke’s ideas on the reasoning for separation of powers

Answer 12

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

Question 13

what are the 4 models of separation

Answer 13

legal, functional, constitutional and de facto

Question 14

what is the legal model of separation of powers

Answer 14

A separation of the branches of government brought about by law. Law creates the various bodies responsible for exercising those powers of government.

Question 15

what is the functional model of separation of powers

Answer 15

Separation of the branches on the function(s) performed by each.

Question 16

what is the constitutional model of separation of powers

Answer 16

Separation that goes beyond mere legal separation, because it is brought about by the operation of some supreme law

Question 17

what is the de facto model of separation of powers

Answer 17

Describes a separation of powers that exists because there is a continued assumption and practice that people involved will respect the need for separation.

Question 18

are all the branches of government legally separated in nz

Answer 18

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)

Question 19

how is the functional distinction between Parliament and the Executive made since members of the executive also have to be members of parliament

Answer 19

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

Question 20

one must be occupying the appropriate role in order to exercise?

Answer 20

the corresponding power

Question 21

do we have a direct application of constitutional separation of powers in nz

Answer 21

no, we do not have an overarching codified constitution that divides up the powers

Question 22

how is separation ensured between the judiciary and the Ministry of Justice (executive)

Answer 22

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

Question 23

does the underlying rationale of Montesqeuieus doctrine of power survive

Answer 23

yes - it is about securing the same sort of civil liberty

Question 24

what are the 3 requirements of the pure Montesquieuan doctrine of separation

Answer 24

1. the same persons should not be part of more than one organ/institution of government
2. one organ should not control, check or interfere with the work of another
3. one organ should not exercise the functions of another

Question 25

do the 3 principles of the pure montesquieuan form of the doctrine survive

Answer 25

no

Question 26

what is the relationship in membership between the executive and legislative

Answer 26

the members of government are recruited directly from members of parliament - dual membership

Question 27

how many members form the executive

Answer 27

26 - around 20% of the legislative organ

Question 28

if you are a member of parliament, can you be be employed by the executive in any way

Answer 28

no

Question 29

what is an overlap between the executive and legislative branches

Answer 29

the Governor General is simultaneously part of both branches

Question 30

government ministers are accountable to?

Answer 30

Parliament

Question 31

is there no membership overlap between legislative and judicial relationship

Answer 31

no, there is no membership overlap

Question 32

could a judge also be a member of parliament

Answer 32

no

Question 33

parliament is supreme. statute law trumps?

Answer 33

common law