week two & week three lec 1 Flashcards
what are the three pillars of the constitutional framework
treaty of waitangi, rule of law, parliamentary sovereignty
where else can the constitution be found other than in the pillars of the constitutional framework
statutes, judicial decisions, instruments of royal prerogative, conventions, parliamentary rules, international law, practice, other documents
what kind of tensions are there around the nz constitution
we don’t agree what the role of each pillar is, the relationship between the pillars and the content of them
what is the founding document of nz
the treaty of waitangi
why did maori want some form of relationship with the english
because of some bad behaviour of some english people already in nz
why did the british government encourage iwi to form the united tribes of nz
because they didn’t want other states laying claim to nz because if a country wasn’t recognised as a state then they could be colonised and taken by someone else
why did northern iwi want an agreement with england
because their ships they used to trade with english colonies in australia kept getting seized because they didn’t have a flag
what was the issue with the united tribes when england came to colonise nz
they couldnt just march in because they had already recognised the united tribes of nz as a state and invading that would mean war so they made the treaty
is the treaty of waitangi described as ‘detailed’
no
were all iwi represented in the treaty
no, many are unrepresented
what were the two versions of the treaty
english and te reo maori
according to international law, which version of the treaty is the binding document
the te reo maori version as it has the vast majority of signatories
what are some of the translational differences between the english and the maori versions of the treaty
M: ‘complete government’ rather than E: ‘sovereignty’
M: ‘chieftanship’ rather than E: ‘possession’
did the british crown adhere to the treaty initially? why or why not
they did because maori were powerful
why did the british crown start ignoring the treaty and the demands of maoridom
the british crown became more powerful
what was said about the treaty of waitangi in Wi Parata v Bishop of Wellington 1877?
“the pact known as the Treaty of Waitangi … must be regarded as a simple nullity”
why is the treaty the shape it is today
because of its poor treatment - it was left in the basement of government house and rats ate it
what was established in the 1987 lands case
the principles of the treaty which are now a settled part of NZ law
what did the court decide in the 1987 Lands (SOE) case
the principles of the treaty needed to be respected, every SOE that was sold had to have some way for Maori to remedy past grievnces
what were the key principles arising out of the lands case
the crown had a duty to act reasonably and in good faith, actively protect Maori interests, make informed decisions and remedy past grievances. the crown had to balance these with their right to govern
what is the main idea of parliamentary sovereignty
parliament can do everything
what did the Earl of Shaftsbury say about parliamentary sovereignty in 1689
“The Parliament of England is that supreme and absolute power, which gives life and motion to the English government”
what did Ridley FF say about parliamentary sovereignty in 1988
“If we [in Britain] have a constitution at all, it is a one-sentence constitution stating that Parliament can make or repeal any law whatsoever”
what is the highest source of law
the legislation of Parliament
what is the positive aspect of parliamentary sovereignty
all acts of parliament will be followed by the courts, no matter what they say
what is the negative aspect of parliamentary sovereignty
nobody, other than parliament, can derogate from an act of parliament
what are 5 legal consequences of parliamentary sovereignty
- nz parliament cannot bind its successors
- doctrine of implied repeal - a later statute will trump an earlier statute if there’s any clash
- limited judicial review - the courts cannot review statutes
- the constitution can be changed by any ordinary act of parliament in the normal process
- no limits to an act of parliament
because parliament can do anything, what is the one limit it has
it cannot limit itself
what is a myth of parliamentary sovereignty
that parliamentary sovereignty is a westminster principle. this is a myth because until recently, parliamentary sovereignty such as what we have in NZ was the norm around the world, even with a written constitution
why was parliamentary sovereignty the norm
democratic principle: parliamentary sovereignty means that the electors can control the constitution and the power of the state as they elect representatives
why is the US known as the pre-1945 exception
they were the exception to the rule at that time where nearly every country followed parliamentary sovereignty
what is the US approach rather than parliamentary sovereignty
they have a constitution which is superior to all decisions and laws of all branches of government. The Supreme Court will interpret the constitution in their decision making and can strike down laws made by government if they believe they are in breach of the constitution
did the US Supreme Court inheret powers to strike down legislation from the constitution
no, the SC developed its powers itself
describe marbury v madison
Thomas Jefferson was about to come into office and Adams decided to quickly pass law to expend the number of courts so that he could elect more judges. Not all the warrants had been delivered yet and when Thomas Jefferson came in he stopped them from being delivered. Marbury argued the Supreme Court had the jurisdiction to force the government to process his warrant to become a judge but the supreme court refused to hear the case because they said the previous act to create more courts was a breach of the constitution. they refused to hear his case
how did marbury v madison start the US supreme court having power to strike down constitution inconsistent legislation
by refusing to hear the case on the basis of the first act to make more courts being unconstitutional, parliamentary sovereignty was gone
after marbury v madison, what was the US criticised for and what model did Europe have during this time (pre 1945)
they were criticised for having a government of judges. europe used parliamentary sovereignty as they thought it was a better system
what is the taking clause in the US
if the SC takes something away they have to give you compensation e.g. covid protocols etc. which sets a massive tension between the president and congress wanting to do something and the SC saying they can’t
what major effect did Hitler’s rule have on parliamentary sovereignty
Hitler was elected and his takeover happened legally. He came through a constitutional model and was able to destroy that model and create the Nazi state because o parliamentary sovereignty giving his government all the power.
Post war European states wanted to stop such takeover in the future and created constitutionally limited governments.
Parliamentary sovereignty fell out of fashion.
why did the UK/NZ versions of parliamentary sovereignty survive
in NZ there is a continued faith in democratic control.
we lack a written constitution so that model would be more difficult to apply
there is a continued fear of whether we want judges telling parliament and people what to do
what countries have the last 2 extreme versions of parliamentary sovereignty
UK and NZ
why did parliamentary sovereignty come to NZ
Through the UK having it and NZ being a colonial parliament.
what act allowed parliamentary sovereignty to come to NZ
New Zealand Constitution Act 1852 (UK) - empowered NZ parliament to make laws to benefit the “peace, order and good government of New Zealand”
The British government would intervene if they believed NZ was going beyond its rules.
what act let the dominions get full parliamentary sovereignty (not limited by UK)
The Statute of Westminster 1931 (UK) - dominions could opt in to give themselves full power of their future governments
why was the Statute of Westminster opt in
because some parts of the British empire didn’t want full sovereignty and power so the ones that did had to pass a law in their own country to ask to be independent
why did NZ not immediately opt into the Statute of Westminster
because our economy was so tied to the uk that nz feared if we become independent we might suffer from restrictions the british might put in place
what was the legislative council
nz’s second house of parliament. the crown appointed the people on the reccomendation of the government so it didn’t really do anything because they would just follow the government when a bill came to it because thats who they were appointed by
how did nz eventually enact the statute of westminster
they wanted to abolish the legislative council so they enacted the statute of westminster in 1947 to be able to change their constitutional aspects
did nz introduce a new constitution or adopt one when they became independent
no because nz kind of just stumbled into being independent and didn’t really notice. we didn’t consider the constitutional questions around life after independence.
what constitution did nz take on after becoming independent
nz unthinkingly adopted the UK’s model of the uncodified constitution and the UK’s model of parliamentary sovereignty
what was dicey’s contribution to where parliamentary sovereignty in the british model came from
big bang moment - glorious revolution - parliament (Jame II) wins the battle against the crown (William of Orange) and makes the condition in the bill of rights that parliament will be supreme.
what is the argument as to parliamentary sovereignty evolving to become formed
if over time it was accepted rather than Dicey’s big bang moment idea, since it evolved once can it evolve again.
is there a constitutional rule for the NZ courts
no, because of parliamentary sovereignty the courts don’t have a role in upholding the constitution
what is the basic idea of the rule of law
if you’re a leader and create a set of rules, everybody should follow it including you.
we have a set of rules that apply to everybody
what are the two approaches to the rule of law
substantive and formal
what is the idea of the substantive rule of law
there are certain things that are wrong to do - there are rules that apply to everybody and nobody can breach those rules because to do so would take you outside of the law
what is the formal idea of the rule of law
as long as the rule is legal within the framework of the constitution, then it is law - the substance can be anything as long as the formal rules are okay
what is the magna carta 1215
this historical document was a treaty to resolve the rebellion of the nobles against King John who was in a lot of debt due to lost wars.
what does s34 of the magna carta create
a ban on trials without witness - nobody shall lose their property, land or rights “without lawful judgment of his peers or by the law of the land”
what does prohibitions del roy mean
prohibtions of the king
what did the 1607 prohibitions del Roy do
the King can’t move cases from one court to the other because the judges are using the common law and the King is not
what is the 1688 bill of rights
part of the deal william signs to take control of the British army - part of the deal is parliamentary sovereignty and the principle of the rule of law
who was entick in entick v carrington
a reverend (but not actually - fraudster)
who was carrington in entick v carrington
the King’s messenger who exercised the warrant
what was the initial situation in entick v carrington
entick published in the monitor a series of articles against the government of the time. the secretary of state issues a warrant for sedition against authors of these authors - one of whom is entick.
entick is arrested.
why did entick sue carrington
for trespass. he claimed its tresspass because Carrington doesn’t have the power of the law to defend him as you can only do stuff if the law allows you to do so but there was no written rule or legal basis to provide for that authority
how did carrington try to defend his actions in entick v carrington
the only means for dealing with sedition was these warrants and they were common practice
what was the judges famous quote from entick v carrington
“If it is law it will be found in our books, if it is not to be found there it is not law” - this is the English rule of law
what was the result of entick v carrington
the shield of law disappears and therefore when Carrington enters he is guilty of tresspass
in most of the world the rule of law has been ?
codified in some form
how is the rule of law unpacked and given clarity in the US
in the 5th, 14th and 1st amendment
does the australian constitution mention the rule of law
no, but the australian courts have assumed from the wording of the constitution that the rule of law exists in australia
what is the rule of law in nz based on
the english rule of law, the Diceyan rule of law
what are Dicey’s 3 principles of the rule of law
- all government actions must be lawful
- equality before the Ordinary law
- individual rights will be found in the judgments of the Common law
in what cases is Dicey’s 1st principle in action in NZ
Blundell v Attorney-General 1968
Ministry of Transport v Payn 1977
R v Hartley 1978
Fitzgerald v Muldoon 1976
what happened in Blundell v Attorney-General 1968
Blundell was restrained by a family member and then police. there was no reason for the arrest. the jury was told if they believed the officers had acted reasonably that was lawful.
This was not the rule of law, this is Carrington’s argument. The appeal court overruled because the powers of arrest were not able to be extended to reasonableness.
what happened in ministry of transport v payn 1977
the MOT take Payn to court over refusal to take a breathalyser test. the breath test was requested on private property and after they’d been told to leave. therefore, according to the formality of the rule, the refusal was not a breach
what happened in fitzgerald v muldoon 1976
muldoon wins the election and one of his policies is removing the superannuation scheme. instead of going back to the legislation to change it he issued an order for employers to stop collecting the money for the scheme.
in doing so he didn’t follow the process because the law to take the contributions was still in place. fitzgerald takes the case and the judge ruled that Muldoon’s statement was ultra vires (beyond the power that he has)
what are the 3 critiques of the Diceyan model
historical, political and practical
explain the 3 critiques of the Diceyan model
historical: Dicey’s model is not particularly clear
political: formal rule of law is a political view that views a small state as good and a big state as bad
practical: is this enough in NZ to restrain the power of parliament in NZ
what did the Imperial Laws Application Act 1988 resolve?
uncertainty over the inheritance of imperial statutes
what are some examples of prerogative powers exercised in the name of the Crown?
pardoning criminals, assenting to bills, conducting international relations, summoning, dissolving and proroguing parliament, appointing ministers, judges and public office holders
what rule does international law ‘not know’
stare decisis
