week three lec 2 & 3 Flashcards
which pillar actually dominates out of the 3 rather than being one of them
parliamentary sovereignty because of the nature of it
is there acts that parliament has passed that contradict the treaty
yes
what are 3 examples of the consequences of parliamentary sovereignty being above the other pillars
minority rights in NZ e.g. Chinese Immigrants Act 1881, Maori rights and the treaty e.g. Ngati Apa case and the Foreshore and Seabed Act, emergencies and previous legislation which gave HUGE power to the government of the day if they could claim an emergency
what did the Chinese Immigrants Act 1881 create
a ‘poll tax’ of 10 pounds and later 100 for Chinese to enter the country.
only one chinese passenger per 10 pounds of cargo, later 200.
only chinese men could come, not their partners or families
what did the appeal court say in ngati apa and what did the crown do
the appeal court said if they could prove that it was theirs (the foreshore and seabed) then it could be theirs.
the crown stepped in and introduced the foreshore and seabed act which extinguished potential rights that iwi had to the foreshore and seabed
what happened in the watersiders dispute 1951 because of the way parliament had extreme powers when there was an emergency
they made it an offence to encourage, aid or abet strikers.
striking and non-striking children were seperated in schools to ensure the non-striking kids weren’t giving their striking friends food
it was an offence for a shop owner to give credit to striking workers
there were house arrests
there is an argument that some things are fundamentally ? and so we shouldn’t let parliament do everything
wrong/unfair
what case put an end to the early views that there was hints of some things being so inherent that judges could intervene
Pickins v BRD 1973
originally the appeal court considered that parliament may have been misled (with the incorrect information around the closure of railway lines), but the House of Lords said there is no case to answer because parliamentary sovereignty is complete and there shall be no challenge to anything because it was passed properly.
what document formed the united kingdom
Treaty of Union 1707
what was the pillar box war
they got introduced in scotland and were defaced because they had ER II on them and Elizabeth was the second Queen Qlizabeth of England but not of the United Kingdom
what case challenged the royal numbering on the basis of the Union?
MacCormick v Lord Advocate 1953
they challenged the numbering and lost.
there was nothing in the Union document that said what the King or Queen should be called.
the scottish court hinted at limiting the power of parliament on the basis of the Union
what is implied repeal
an extreme form of parliamentary sovereignty where a later act will override an earlier act
what happened when Britain tried to change to the metric system
in court they said the acts are constitutional and they don’t want parliament accidentally overriding them - thus the doctrine of implied repeal shouldnt apply here.
this is moving away from the idea that statutes are created equally
what section of NZBORA states that law cannot apply retrospectively
article 26
what happened in R v Pora
a new act was made basically aimed at Pora which allowed the extension of his sentence whem his case was retried in 2000 - a breach of the BORA
what was Elias and Tipping’s approach in regards to R v Pora 2001
where there is inconsistency the court must determine which is the leading provision.
the court didnt want to apply they new act, so they ignored implied repeal and worked with ‘leading’
in the 1984 weights and measures act there was a right for the UK to use both imperial and metric.
in 1972 the UK had implemented an EU rule to use only metric.
why was this an issue
the 1984 act is later and therefore should impliedly repeal the 1972 act. but the judges said the 1972 act is constitutional so the judge said later judges would be reluctant to override constitutional statutes just because of later statutes.
he didn’t follow implied repeal
how did elias and tipping get away with not applying the statute in R v Pora
they stated there was inconsistency between the two statutes and thus it was innapropriate to simply apply the later statute.
this is a challenge to parliamentary sovereignty as judges edge into substantive areas and limit parliament
what was the point of R v Jackson A-G 2006
if parliament creates particular rules around statutes and their amendment, should the court uphold those procedural rules? Technically no, because they should just apply the later legislation.
In this case the court wouldn’t allow the procedures to be removed by an Act that overruled that Act.
what happened in taylor v nz poultry board 1994
the judge said a rule about torture would not be law.
this case was about the sale of eggs in Masterton - Taylor sold his eggs in the wrong district. the egg inspector inferred from taylor not responding to the question of where he sold his eggs that he did sell them in the wrong poultry board
