Comlaw101_Part A and B

Regal authority

Acting without consent of parliament

Maxims

General rules to assist in determining the meaning of specific words and phrases in legislation, developed by the courts.

Mandatory and directory provisions (Intrinsic aids)

Mandatory = Shall or must or is required (no choice) May = Discretionary (there is a choice) Example: In rare cases, a court may decide regardless of the word used, that a direction is mandatory or directory by looking at the consequences. But the usual approach is that you must read the words that Parliament has used.

Constitutional Doctrine

Relating to the constitution, a stated principle of government policy, mainly in foreign or military affairs.

Statute law

The body of law consisting of written laws adopted by a legislative body

Court of first instance

a court in which legal proceedings are begun or first heard.

Act (of Parliament) and statute

terms referring to legislation made by parliament

Principles of the Treaty

1. Analogy to fiduciary (Maori and crown) duty 2. Spirit of co-operation 3. Honour of the crown 4. Fair and reasonable redress Other include: -Principles of exchange -Principal of active protection -Right of self-regulation -Duty to consult -Principles of development i.e relationship continuous to evolve between the Maori and the Crown

Means and includes (Intrinsic aids)

Means = complete and exhaustive Includes = not complete Example: 'fruit means apples, pears, or bananas' a mandarin will not be caught as fruit is limited to these 'fruit includes apples, pears, banana' a mandarin may well be caught as it is a fruit

District Courts

Most court business takes place in district courts, which form the base of the pyramid. Most criminal cases are heard in the district courts, as well as a large number of civil cases, but there is a statutory 'ceiling' on the cases that the court can hear. Cases where the amount in issue is more than $200,000, and specified serious criminal cases (such as murder) are heard by the High Court. The High Court has broad general jurisdiction. In practice, it tends to hear the more serious jury trials, the more complex civil cases, administrative law cases and appeals from the decisions of courts and tribunals below it. DCJ judges are refferred to as

Auditor General (NZ Economic Constitution)

Officer of parliament, but independent. Checks if appropriated money is spent properly. Checks proper processes are followed for government contracts. NZ Auditor General: Lyn Provost

Electoral Act 1993 (constitutional statutes)

Provides rules on the conduct of elections, voting age. Section 168 states that you cannot change some sections unless you get a 75% vote in Parliament or the majority in a referendum.

Noscitur a sociis

Read in context. A word or phrase draws its meaning from the words that surround it. Example: Privacy Acts exclusion for "in relation to its judicial functions, a tribunal". Was the church's tribunal a tribunal? No, as other exceptions were all statute created on public bodies.

System of binding precedent

Requires: -A stable court hierarchy supreme court court of appeal high court district court -A system of law reporting NZLR New Zealand law reports NZELC New Zealand employment law cases

Waitangi tribunal

Set up to make non-binding recommendations for: -Compensation for wrongful seizure of land in private hands -Compensation or return of land in crown hands -Not a court, but its findings carry considerable weight -May hear past grievances, mostly now filed, it is a continuous obligation

Expresso unius est exclusio alterius

The expression of one thing is the exclusion of the other. Where matters are expressly mentioned, there is a presumption that others are excluded. Thus, following this rule, 'no dogs allowed' means that lions are allowed but guide dogs are excluded.

Golden rule (Judicial approaches to statutory interpretation)

The golden rule allows a judge to depart from a word's normal meaning in order to avoid an absurd result. Application of the purposive approach to statutory interpretation. The court may not rewrite legislation, but on rare occassions the words may be modified so as to avoid absurdity, repugnancy, or inconsistency. Lord diplock test (to see if rule should be used): 1.

Government

The government is temporary. It changes frequently. A government may come and go. The Government is made up of members of the House of Representatives appointed by the Governor-General as Ministers of the Crown. The House of Representatives must have "confidence" in the Government for it to continue in office. This is known as "responsible government". The Government (also known as the Executive) is then responsible for day-to-day administration of the country. The Government administers the law. The Government is formed after a democratic election held every 3 years. This is the Government. It runs the country and makes day-to-day decisions on how and what NZ should spend its money on. It brings proposed laws to parliament, and decides policies which get put into practice by government departments. It is made up of Ministers of the Crown supported by government agencies.

by-law regulation order in council notice enactment

Types of delegated legislation (also called subordinate legislation)

Public law (first method of classification)

the law of relations between individuals and the state (government). Includes: -criminal law (a system of law concerned with the punishment of offenders) -constitutional law (Body of law derived from a country's written constitution. It lays down and guides the duties and powers of the government, and the duties and rights of its citizens and residents) -administrative law (Body of rules, regulations and orders formulated by a government body responsible for carrying out statute law

Public bill (Enactment process (bills become acts))

the law of relations between individuals and the state. Most common type of law, applies to all of General public NZ. A public bill will become a public Act (applies to whole of NZ). Eg. Fisheries Act 1998, this Act governs fisheries respources in NZ.

per incuriam

wrongly decided because it has missed out a relevant statutory provision or case

Extrinsic aid

(a) Other legislation may be used as a guide to interpretation and this occurs quite often. Eg. A word may be defined in another piece of legislation and a court may 'borrow' that definition. (b) Previous case law which deals with the same subject-matter of the statute may be considered. Eg. S133 Companies Act 1993 says directors must use powers for 'proper purpose' which is not defined. So must look to cases to find what the proper purpose is. (c) Other materials used to assist in the interpretation of a statute. Such as law commission reports and now Parliamentary debates (Hansar) used occasionally. Eg. House of lords in pepper v hart- cautious approach to Parliamentary debates (Hansard) only where: Ambiguity, material helps, only statements by ministers/promoters of Bill.

Separation of powers (Three arms of government) (constitutional doctrine)

*NZ does not have a separation, unlike USA who do* Three separate carry out the functions of government underpin our law 1. The legislature: passes or makes statutes (legislation/Acts of Parliament) 2. The judiciary (courts): Interprets the legislation to find what Parliament intended 3. The executive: Implements the laws of Parliament and rulings of the court

The Judiciary (the courts) (three arms of government)

-Ensures executive does not abuse its powers -Can strike down delegated legislation -Is subordinate to Parliament -Has power to interpret legislation Judicial independence is achieved by: -Judges appointed not elected. On the recommendation of the Prime Minister. -Tenure and remuneration is guaranteed -MP's not (meant) to criticize court decisions -Disobeying judicial orders (eg. name suppression) contempt of court Court Hierarchy: 1. Supreme Court (formerly Privy Council) 2. Court of appeal 3. High Court 4. District courts (3. and 4. are both court at first instance and appellate courts) -Lower courts must follow rulings of higher courts (doctrine of precedent and doctrine of state decisions) -Process of appeal -Appellate (deals with appeals) courts compared to courts of first instance -Specialist courts and tribunals Dispute resolution: -The courts provide a framework for the hearing of cases: for the bringing of prosecutions and the resolution of disputes. Other options also exist. -Court action is a last resort and businesses should not litigate unless absolutely necessary

Legislation (2 broad types)

-Laws made by parliament -made by other body (delegated legislation) made under the authority of parliament through an enabling Act

The process (Enactment process(bills become acts))

1. Introduction 2. First reading 3. Select committee 4. Committee of the whole house 5. Third reading 6. Royal assent (the bill now becomes and Act of Parliament) when urgant the bill does not have to go to select committee

Private law (also referred to as civil law) (first method of classification)

A branch of the law that deals with the relations between individuals or institutions, rather than relations between these and the state. Split into sub groups: -the law of obligations: It is the body of rules that organizes and regulates the rights and duties arising between individuals. eg. contracts, torts, fiduciary obligations. -the law of property: the relationships between and among members of a society with respect to "things." eg. the creation, transfer, and protection of rights to assets such as ownership, security interests, and trusts.

Provisos (Intrinsic aids)

A condition that must be accepted in order for someone to agree to do something. Provided that or provided however. Example: Housing Act s5: "the governor general may take under the public work Act 1928 any land required for state housing purposes. Provided that no Maori land shall be taken for state housing purposes without the consent of the minister of Maori affairs.

Use of the dictionary (Judicial approaches to statutory interpretation)

A court may use a dictionary to ascertain the meaning of words

Doctrine

A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case.

Privy Council

A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on state affairs.

Fiduciary obligation

An individual in whom another has placed the utmost trust and confidence to manage and protect property or money. The relationship wherein one person has an obligation to act for another's benefit.

Obiter Dictum (obiter)

Any statement of law which is not part of the ratio (by-the-way statements). Includes statements based on hypothetical facts or contrary facts. Status and value of obiter can be useful for later cases as it gives a guide to the courts on how the case should be decided. Can warn of changing judicial views.

Dissenting judgement

Apellente courts always have more than one judge - usually odd so that a majority ruling is ensured. The dissenting judgement are the minority judgement in the case in question. A dissenting opinion (or dissent) is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. Often suggests a further appeal may be worthwhile, and the dissenting judgement may be later on adopted.

Doctrine of parliamentary sovereignty or doctrine of parliamentary supremacy

Applies to Acts of parliament not delegated legislation

Case law location

Case law is found in reported and unreported cases.

Ethics

Code of behavior or guidelines. If you break the code of ethics you could be sanctioned to legal action.

Factors that affect decision makers in business

Code of ethics, employment law

Conventions/customs

Constitutional conventions are the most unwritten part of the New Zealand constitution. They are practices of constitutional behavior that have been followed so consistently and which are believed to have such force that they are generally considered to govern constitutional behavior. These are not enforceable. Example: the convention of caretaker government, which provides that a government must significantly constrain its decision-making if it loses the confidence of the House of Representatives, even while having full legal powers to govern

Guiding principles

Courts in NZ are bound by the precedents of courts bigher in the NZ hierarchy. Decisions from other jurisdictions are not binding but may be persuasive, the higher up the court in the other jurisdiction and the closer jurisdiction law to our own, then the more persuasive the decision will be. Judgement ->Actual outcome ->Facts ->Reasons for decision ->Ratio or ->Obiter Not everything in a judgement is binding The reasoning in a judgment may be divided into two parts: 1. atio decendi (binding) 2. obiter dictum (non-binding)

Article 1 (the text)

English: "the transfer of sovereignty from Maori to the British Crown" Māori: "chiefs gave the queen 'te Kawanatanga katoa' - the governance or government over the land." British crown would exercise the fundamental powers of government, Chiefs rightly thought they retained own power.

Interpretation Act 1999 (Extrinsic aid)

Extrinsic aids are any aid to interpretation outside of the Act itself. This statute was enacted specifically to provide guidance for the interpretation of legislation. An extrinsic aid to interpretation is one outside the particular legislation which is being interpreted. This Act is the most important extrinsic aid to interpretation. Section 5(1) puts into statutory form the purposive approach. The Act provides rules on the commencement of Acts and regulations. Provides definitions and other default rules, eg. working days, gender, singular/plural

How to search for the law?

First, is there a statute that covers the situation? If there is one, is there any case law that can help to explain the statutory provision/s? Secondly, if there is no statute, is there any relevant case law (precedent)? Thirdly, if there is no statute and no relevant case law you could go to parliament to pass legislation, compare similar situations to make a similar law, look at oversees precedent as it may have been addressed, make something new. If there is a conflict between two or more laws: between 2 statutes, the later in time prevails; between statute and case law, statute prevails; between 2 case laws, the ruling of the higher court states the law.

Parliament (three arms of government)

Function: -Provides members of the executive and money for them to govern -Scrutinize and debates the government performance -Debates proposed legislation and listens to public submissions -Passes new laws (with assent of GG) Independence: -Self-regulation by own rules/committees -Freedom of speech for members of Parliament while in debating chamber

The Executive (three arms of government)

Governor-General Is not a member but presides over: -Acts legislatively to sign bills into Acts -Presides over executive council, signs orders in council and other delegated legislation -Other powers: dismiss a government that has 'gone mad' and call an election Prime Minister: -Elected leader of party/coalition in parliament -Allocated ministerial roles and advises Governor-General Ministers of the Crown: Must be MP's (Members of Parliament) (most sit in cabinet) A cabinet is a body of high-ranking state officials, typically consisting of the top leaders of the executive branch. -Currently 20 ministers in cabinet -Currently 5 ministers outside cabinet -Oversees management of government departments on crown institutes etc. immigration/police/health Cabinet (=Prime Minister + Ministers of the crown): -Informally creates policy and introduces it to parliament -If cabinet decides to put bill before parliament normally becomes and Act = law Executive Council (=Governor General + Prime Minister + Ministers of the crown): -Passes some delegated legislation (pursuant to authority granted by statute)

Judgement of earlier cases

How can courts deal with an early judgement/previous case? A ratio in a later case may be: -confirmed (affirmed) -rejected -overruled -reversed (or overturned) on appeal -restricted -distinguished

Common presumptions

In addition to the maxims, the courts have also developed various common presumptions about the interpretation and meaning of legislation. Presumptions are basic expectations that the legal system will operate in a particular fashion. They will be followed unless an Act indicates otherwise. Main presumptions NOT RULES: -An Act does not have retrospective effect (does not deal with the past). No backdating (put an earlier date to (a document) than the actual one) laws. -There is no criminal liability without mens rea (criminal intent). There must be criminal intent, how serious was the offence. -The courts jurisdiction is not excluded. -An earlier statute is not repealed by a later inconsistent one

Legislation (source of law)

Primary source of law in NZ, overrides case law. Legislation is made by parliament (house of representatives/legislature).

New Zealand Bill of Rights Act 1990 (constitutional statutes)

It enacts certain rights and freedoms such as the right not to be unreasonably detained, right not to be searched without just cause, right to freedom of expression, right to freedom of association. Bills re checked for compatibility with the New Zealand Bill of Rights Act 1990.

Judge decisions

Judges decide cases by: natural to want to justify a decision by reference to a prior situation. The doctrine of state decisis. Promotes predictability and uniformity. Justice requires like causes to be treated alike. The doctrine of judicial precedent. The notion of binding precedents.

State

Legal monopoly on force. The State is more or less permanent and continues from time immemorial. The State continues for ever.

the Crown

Legal personality of NZ state, has symbolic aspects (status of mana)

Definitions within the legislation itself (Intrinsic aids)

Many Acts contain a section (known as the interpretation section) which contains definitions words/phrases within the Act. Sometimes this will be section 2 of an Act. Example: Education Act 1989 "parent, in relation to any person means a person who is the persons mother, father, or guardian"

Article 3 (the text)

Māori: The Crown gave an assurance that Māori would have the queen's protection and all rights - 'tikanga' - accorded British subjects. This was close to an accurate translation of the English text. Extends to Maori all rights and privileges of citizenship.

Article 2 (the text)

Māori: confirmed and guaranteed the chiefs 'te tino rangatiratanga' - the exercise of chieftainship - over their lands, villages and 'taonga katoa' - all treasured things. Māori agreed to give the Crown a right to deal with them over land transactions. English: confirmed and guaranteed to the chiefs 'exclusive and undisturbed possession of their lands and estates, forests, fisheries, and other properties'. The Crown sought an exclusive right to deal with Māori over land transactions. The prime source of Maori grievances.

NZ system of government

NZ uses a Mixed Member Proportional (MMP) voting system which makes it unlikely that any one political party (eg National, Labour, Greens) will win a majority of the seats in the House. The party with the most votes usually needs to form a coalition or agreement with another party or parties. NZ also uses the system of 'responsible government'. This means government can only be made up of Ministers who are first elected members of the House of Representatives. The government can only stay in power while it has a majority of members in the House of Representatives. This is known as having the confidence of the House. The system of government works by having 3 separate branches of government. This 'separation of powers' makes sure no one part of government has too much power.

HANSARD

New Zealand Parliamentary debates, official report of all speeches, questions, etc. Used to have a record of everything said in Parliament. Used for accountability.

Constitution

New Zealand's constitution is not found in one document (unwritten). Instead, it has a number of sources, including crucial pieces of legislation, several legal documents, common law derived from court decisions as well as established constitutional practices known as conventions. Increasingly, New Zealand's constitution reflects the Treaty of Waitangi as a founding document of government in New Zealand. In a democracy state has duties to citizens and states power is not unlimited, it is the rules that govern powers of government institutions.

Constitutional conventions

Non-justifiable, cannot be enforced by a court. Are the non-legal rules of a political or constitutional nature. They are useful as they keep the political machine working. They are not written formally, and are not enforceable by the courts. Therefore, they are not strictly law. eg. Caretaker convention

Parliament

Parliament has two constitutional parts: The Sovereign (represented in New Zealand by the Governor-General) The House of Representatives (all members of Parliament) The four main functions of Parliament are: To provide representation for the people To pass the legislation (law) by which the country is governed To scrutinize the activities of the Government To approve the supply of public funds to the Government Parliament makes the law.

Delegated legislation

Parliament may delegate its law making powers to other authorities by statute (the enabling act or parent act) Local bodies make by-laws The governer general or ministers make delegated legislation with various different names including: -regulations -orders in council -notices is useful for time-saving for Parliament, wanting specialised knowledge, easier and quicker to up-date the law In certain curcumstances the courts may challenge delegated legislation.

Public Finance Act 1988 (PFA) (NZ Economic Constitution)

Parliament must authorize expenditure by Executive. Through a process called appropriation (appropriation is the act of setting aside money for a specific purpose. A company or a government appropriates funds in order to delegate cash for the necessities of its business operations), budget speech (Minister of Finance), appropriations bill, estimates examined by finance and expenditure select committee. Contains principles for responsible fiscal (relating to finance) management and accountability, eg. regular reporting on extent to which government policy consistent. Transparency and advance notice, eg. annual fiscal strategy report, regular economic and fiscal updates, annual statements of tax policy charges. Relevant to business as it provides predictability of tax and government policy, estimates detail which minister responsible and type of spending, signals areas government cutting/expanding spending so helps firms bid for government work.

Civil cases

Plaintiff: Starts proceedings and seeks a remedy Defendant: Defends proceedings, adversarial system, can have multiple defendants/multiple plaintiffs; plus defendants can join third parties to spread responsibility, plaintiff usually sues person with the most money

Criminal vs Civil

Plaintiffs seek a remedy in civil law compared to state brings criminal case eg. police, commerce commission. Normally plaintiff must enforce civil action. There is the concept of punishment in the criminal law, criminal wants to punish, civil wants compensation. Terminology: 'Prosecute' in criminal law cf 'Sue' in civil law. Appellant-party appealing decision Respondent-The other party, responds to the appeal Mediation and conciliation-parties reach a negotiated settlement Arbitration-an arbitrator hears the dispute; the arbitrators decision is binding on the parties (i) Standard of proof: Civil law-balance of probabilities Criminal law-beyond reasonable doubt (ii) Procedure: Civil law-filing and serving of a statement of claim Criminal law-Swearing of an information Outcomes: (i)Civil -Accounts of profits -Damages -Injunction -Mandatory injunction -Specific performance -Delivery of infringing items -Declaration (ii)Criminal -Often a penalty of some kind -Restoration

Ratification

Sign or give formal consent to (a treaty, contract, or agreement), making it officially valid. Under the common law, treaties must be ratified to be part of local law. The Treaty has not been ratified by either the British or NZ Parliament (not passed into statutory law) Principles of the Treaty have been adopted in legislation. Courts do recognize principles when adopted in legislation. eg State owned Enterprise Act 1986, s9 "Nothing in this Act shall permit the crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.

Treaty of Waitangi

Signed 6 February 1840.

Doctrine of stare decisis

Stare decisis is a doctrine or policy of following rules or principles laid down in previous judicial decisions. It is the principal that maintains that previous decisions are to be followed by the courts. This policy dictates that the court must abide or adhere to decided cases.

Ratio Decidendi (ratio)

The 'ratio' is the binding part. Ratio is the judges pronouncement of law on the particular facts of the case. The ratio may also be explained as the material facts of a case plus the principle of law upon which the courts decision is based. The ratio does not include the actual outcome for the parties. Example: "Judgement for the plaintiff; damages in the sum of $15,000" would not be the ratio of the case, nor part of the ratio of the case (although it is the actual outcome for the parties in the case) You can find the ratio by asking what was the legal rule/principle used to decide the case. Sometimes need to paraphrase, sometimes copy actual words. The ratio can be located anywhere in the case but normally near the end of the decision.

Court of Appeal

The Court of Appeal deals with appeals from cases heard in the High Court and serious criminal charges heard in District Courts. 10 overall, 3 judges for little matters, convene at 5 if it is substantive, can have high court judges, not confined.

High Court

The High Court can hear criminal and civil cases, as well as appeals from lower courts or tribunals. When referring to a High Court judge in a legal context, the judge is identified by use of the surname (or first name and surname if appropriate), followed by the letter 'J'. For example, Mr Justice Bloggs or Mrs Justice Bloggs would be referred to as "Bloggs J". Where several judges are listed the double letters 'JJ' are used; for example, "Bloggs, Smith and Jones JJ".

Supreme Court (Formerly privy council)

The Supreme Court is New Zealand's highest court and our final appeal court. The court hears appeals when they relate to the interests of justice. 5 Judges in on a case but they have 6 judges. Can have high court judges, not confined. JJ supreme court

The structure of statutes (Intrinsic aids)

The contents (table of contents/analysis) Parts of the Act Sections and subsections Example: S17(1)(b)(i) and(ii) Section 17, of sub section 1, paragraph b, sub paragraph i and ii

The courts (judiciary) (source of law)

The courts (judiciary) make case law (the law as established by the outcome of former cases) (also known as judge made law). It is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. They interpret the law not create it.

Reading the Act as a whole (Judicial approaches to statutory interpretation)

The only way to understand say an Act's purpose is to read it from cover to cover and to get a feel for what it is trying to do. Example: Quilter v Attorney-General [1998] -No definition of marriage in Marriage Act 1955 -Appellants were lesbian -Court found Act did not contemplate same sex marriage - second schedule, listed prohibited degrees of relationship - Indicated traditional meaning of marriage ie. between opposite sexes - Although Act did not define, other parts of the Act, schedule 2 of Marriage Act has prohibitted degrees of marriage. Because everything was male/female the marriage definiation implied is between man/woman.

Purposive approach (mischief rule) (Judicial approaches to statutory interpretation)

The overriding approach to statutory interpretation because of s5(1) Interpretation Act 1999. "The meaning of an enactment must be ascertained (found) from its text and in light of its purpose" Need to find the purpose of the Act. -Read the actual words of the Act -Look at the purpose section -Reading the act as a whole Sometimes finding the purpose of the Act may involve looking outside of the Act ie. what mischief was the Act trying to prevent? HANSAR If the purpose of the Act is clear, word should be interpreted liberally so as to give effect to the purpose of the Act.

The doctrine of precedent

The policy of courts to abide by or adhere to principles established by decisions in earlier cases. Effect of precedents: 1. non binding/persuasive 2.Binding Lawyers must figure out when it is and isnt.

The rule of law (constitutional doctrine)

The principle includes the following concepts: -You can only be accountable if you break the law. -No one is above the law -Does not affect the power of parliament to make whatever law it chooses -Includes the concept of due process (an individual cannot be deprived of life, liberty, or property without appropriate legal procedures and safeguards)

Civil law (Third method of classification)

The term civil law has two different meanings. 1. It is the name for a type of legal system: -countries with civil law legal systems (continental Europe) compared with countries with common law legal systems (New Zealand, Australia, United Kingdom). 2. It is used to describe a type of legal liability, in contrast to legal responsibility in criminal law. -criminal law features statutory only-Crimes Act 1961, enforced by the state, designed to punish, standard of proof (beyond all reasonable doubt), often needs the requirement of a guilty mind to establish guilt. -civil law features mixture of statutory and case law, enforced by individuals called 'plaintiffs', designed to enforce rights and to 'remedy' wrong, standard of proof (balance of probabilities)

Common law (Second method of classification)

The term common law has three different meanings. 1. New Zealand's type of legal system inherited from United Kingdom. 2. Case law (as opposed to statutory law) use of Judicial precedents. 3. One type of case law -common law which is the part of law that is derived from custom and judicial precedent rather than statutes. eg. law of contract, law of torts, remedy of damages. -equity which is based on a judicial assessment of fairness as opposed to the strict and rigid rule of common law. eg. law of trusts, law of fiduciary obligations, remedies of injunctions and account of profits.

'And' and 'or' (Intrinsic aids)

The word 'and' is conjunctive (unites) The word 'or' is disjunctive (offers and alternatives) On rare occasions the court may ignore this presumption and find that 'and' means 'or' (or vice versa) Example: Associated newspaper v bancks obscene is defined as a) tending to corrupt and b) containing sex/violence, 'and' meant 'or'

Deeming provisions (Intrinsic aids)

The word deem may be used in a definition to extend the meaning of a word beyond its usual meaning. A section or clause of a statute, regulation or other legal instrument that explicitly states how something is to be treated or regarded. Example: Building Act 2004 S9, "in this Act, building does not include (i) scaffolding used in the course of the construction process"

Common law and equity

These are the 2 types of case law. Historically 2 types of judge made law: common law and equity. The historical reasons for this is that nowadays some courts administer both types. When there is a conflict equity prevails over common law rules but stature can override both. Common law also used to distinguish our type of legal system from European or civil law legal systems eg. Germany or China which use cases) Equity is venerable group of rights and procedures to provide fairness, unhampered by the narrow strictures of the old common law or other technical requirements of the law. In essence courts do the fair thing by court orders such as correction of property lines, taking possession of assets, imposing a lien, dividing assets, or injunctive relief (ordering a person to do something) to prevent irreparable damage

Prerogative powers (constitutional doctrine)

These powers originally belonged to the King or Queen. Many of these were removed by parliament (BORA and constitution Act) examples of prerogative powers today are grant honors (knighthoods, dame), pardon offenders, assent to bills. It is the means by which some of the executive powers of government, possessed by and vested in a monarch with regard to the process of governance of the state, are carried out. Individual prerogatives can be abolished by Parliament

Bill of Rights Act 1688 (UK) (constitutional statutes)

This act gave parliament the sole right to make or unmake law, complete freedom of speech for members of parliament, the sole right to suspend or dispense laws

Parliamentary sovereignty (parliamentary supremacy) (constitutional doctrine)

This doctrine means parliament has plenary (complete) power and it can pass any laws it likes, in particular: -judicial subordination to parliament, the courts must do what parliament says, they must follow the relevant Act. -no parliament can bind its successors, a later parliament is free to change any Act passed by a former parliament

Intrinsic aids to interpretation

Tools that help you to decipher meaning. An aid to the interpretation within the Act itself.

The judges law making ability

Traditionally case law has been the major source of or law. There has been a significant increase in the quality of legislation since last century. Whole areas of law still derive from the cases (eg negligence and defamation). But the most important legal reform now is by legislation. C

Terms of art (Judicial approaches to statutory interpretation)

Usually the everyday meaning of the words will be prefferred. If there is a range of possible meanings, the courts may decide which meaning best suits the context of the Act. On occasions the legal or technical meaning of a word will be prefferred. Example: Fisher v Bell Offence to 'sell or offer for sale' a flick knife, display in window not offer (shop not offering the knfe, the customer was offering to purchase it) but invitation to treat.

Ejusdem generis (Class rule)

Where a number of words which form a class are listed, and followed by a general phrase, the meaning of the general phrase is limited by the class words. Example: Waitakere CC v Leahy -Dog owner liable if dog attacked any stock or poultry. -stock = any deer, goat, rabbit, opossum, or other animal -Dog attacked another dog, not covered Used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation.

Change in meaning over time (Judicial approaches to statutory interpretation)

Words must be interpretted so as to include contemporary meanings. Enactments apply to circumstances as they arrive. Adapting old laws to new issues. Example: Taylor v Goodwin Offence to 'drive furiously any carriage' Speedster on bicycle argument that bicycle was not a carriage. Judge says bicycle carries people and rider drives in sense of guide.

Giving words their ordinary meaning (Judicial approaches to statutory interpretation)

Words will not always been given their literal meaning. The words of a statute will be given their ordinary meaning but not if this will result in absurd conclusions. High courts rules allowed court to order security for costs when plaintiff or all plaintiffs lived overseas. Court held when some plaintiffs lived in NZ 'all'=any off wor words resident out of NZ be added after plaintiffs.

Private bill (Enactment process(bills become acts))

a branch of the law that deals with the relations between individuals or institutions, rather than relations between these and the state. Limited to particular individuals/organisations. Eg. Sydenham money club Act 2001 renamed club and made it a building society

Local bill (Enactment process(bills become acts))

a law passed by a legislative body and intended to apply only to one part of the area under its jurisdiction. Application limited to particular locality. Local government (Auckland council) Act 2001, created new local body and gave it special powers.

When Acts come into force

a) Commencement date may be stipulated eg. this Act comes into the first day of January 2012, default rules if not stated b)Commencement date may be at a later date. This date will be fixed by the governer general by order in council c)If no commencement date stipulated the Act will come into force on the day after it recieves the royal assent Different parts of the Act may come intpo force at different times. The Act may have been repealed (no longer in force) or amended (changes made).

Appeal

apply to a higher court for a reversal of the decision of a lower court.

Caretaker convention

caretaker government is a government of NZ from when the parliament is dissolved by the Governor-General prior to a general election to a period after the election, until the next ministry is appointed.

Apellate court

court of second instance, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal.

Reversed or overruled

means an appeal has been made from an earlier decision