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
our judges are not?
constitutional judges - they aren’t appointed by us as they are set up as ordinary judges
judges are more likely to limit parliaments power when?
statutes and written documents are involved e.g. the treaty, international law
over time, parliamentary sovereignty as the dominant pillar has?
decreased slightly, now more of a first among equals than a clear dominator
what statutes are involved in making up the constitutional framework
The New Zealand Constitution Act 1852 (UK)
1986 Constitution Act
Electoral Act 1993
Local Government Act 2002
Official Information Act 1982
Human Rights Act 1993
New Zealand Bill of Rights Act 1990
what are constitutional conventions
unwritten stuff that makes the system go
what are some examples of executive conventions
ministerial advice, appointment of a prime minister, impartiality of the speaker, parliament will not intervene in the administration of justice, appointment of the attorney general
what is royal prerogative
reminiscence of the power of the monarch that still remains with the monarchy that hasn’t gone to parliament
what is included as royal prerogative
command of armed forces, international affairs (e.g. sending of diplomats, immigration, declaring of war and making or peace)
are judicial decisions a part of the constitution
yes - they are the rule of law in action
what are some ‘other’ sources of the constitution
cabinet manual, international law (ICCPR, ANZCERTA, CTPP), practice, judicial writing, academic commentary
what is the New Zealand Constitution Act 1852 (UK)
NZ constitution originates from the UK under this act, which applied until 1947. this was the first formal constitution.
what is the 1986 Constitution Act
this replaces NZ Constitution Act 1852 (UK).
codifies some of the very basic framework around how the government works in nz
why did the 1986 constitution act come about
because of the constitutional crisis regarding the fall of Muldoon
what are the three branches of government
executive, legislature, judiciary
what is the sovereign under the 1986 Constitution Act
the governor general acts in her stead. she acts on advice
what does part II of the 1986 Constitution Act say
this part lays out some very basic ground rules for the executive including:
- ministers of the executive must be ministers of parliament
- any minister can do the job of any other minister unless there is a specific statute otherwise
- parliamentary under-secretaries
- and more - see PPTs
what does the 1986 Constitution Act say about the legislature
parliament is always sitting
members are MP’s
requirement of oath
speaker elected by majority and remains speaker during the election
what does the 1986 Constitution Act say about the judiciary
s23 - judges have to be independent and can only be removed for misbehaviour or incapacity
s24 - judicial salaries cannot be reduced while they are in office so they can’t be pressured by the government
what does the electoral act 1993 do
defines the electoral system.
deals with the voting system and MMP.
gives the rules around registration of candidates, donations and electoral finances.
what is s268 of the electoral act 1993
if you are going to change any reserved section of this act, you need a 75% majority or a referendum
reserved: term of parliament, rules around representation committees, voting age and finally changing the voting system - MMP
what is the local government act 2002
Provides the basis of sub-national government in New Zealand. This Act lays down the district, city and regional governments. Local government in NZ is only based upon this Act. Parliament can take away power from local government at any time.
what is the official information act 1982
at the time we became one of the most open democracies. basically this means all official information in nz is publicly available unless there is a very good reason for parliament to not release it
what is the human rights act 1993
This is anti-discrimination legislation, which brings together various discrimination statute. Includes areas like age, colour, disability and ethical believe or lack thereof discrimination.
what is the new zealand bill of rights act 1990
our Bill of Rights lays down traditional rights
the BORA only applies to the state. you can’t take breaches of the BORA against individuals, only against the state
what section of which act is entrenched in nz
s268 Electoral Act - voting age, triennial elections, how we decide electorate boundaries are entrenched
what is required to change the entrenched provision in the electoral act
a 75% majority of MP’s or a majority in a referendum. this is single entrenchment
what is double entrenchment
where the entrenchment itself is entrenched
why do we only have single entrenchment of s268 electoral act
because a parliament cannot bind it successors - that would be too hard to change
what is bi-cameral vs uni-cameral
two or one house - in NZ one chamber called the House of Representatives
what is federal vs unitary
Whether the parliament covers the entirety of the country (unitary, NZ) or whether there are states which operate slightly differently
what does ‘responsible’ government mean
there is a line of accountability - Ministers answering questions in the house
what granted NZ’s first constitution on the 16th of November 1840
letters patent
