Constitution (Separation of Powers)

Webb, sanders and Scott: Why has NZ not embraced total separation of powers?

May be impractical (as in order for govt. to function adequately there must be some interaction, coordination and even overlap between the powers

Webb, sanders and Scott: s 6(1) Constitution Act 1986

Members of the Executive Council are required to be Members of Parliament

Webb, sanders and Scott: R v Hansen

Members of the SC who addressed the issue abandoned the language of a formal declaration, speaking rather of a "judicial indication of inconsistency".

Webb, sanders and Scott: R v Poumako

Minority of judges in CA favoured affirming an implied jurisdiction to declare legislative provisions to be inconsistent or incompatible with the Bill of Rights (not yet been affirmed ever by a majority)

The Act of Parliament in force required...

that those deductions and contributions must be made, yet here was the PM announcing that they need not be made.

Legislative Branch:

Makes the law of the country

Webb, sanders and Scott: Executive branch

Makes the legislation (Bills)

Bill or Rights 1688 (Article 1):

'The pretended power of suspending of laws or the execution of laws by regall authority without consent of Parliament is illegal.'

The powers of the state should be separated into different institutions

(Executive, Legislative and Judicial branches) to ensure that one institution does not have all the power and in order to maintain accountability, fairness and liberty.

Fitzgerald v Muldoon; consequences

- Judge said Muldoon's actions were illegal - No punishment on Muldoon as there was no criminal punishment or penalty for breaching the Bill of Rights - The case was set aside for six months because the judge knew legislation would be enacted soon which would abolish the scheme and so there was no point making people make contributions when it would only be returned - Muldoon was put in a bad light; public embarrassment

Fitzgerald v Muldoon; key facts

- Labour government put in place a Superannuation scheme; employers paid a certain amount of employees' wages into an account for retirement; this was compulsary - the scheme was set up by a law of Parliament (because cannot levy a tax without consent of Parliament) - Superannuation Act - 1975: General election and national party came into power, led by Robert Muldoon - National got majority of seats in Parliament and we thus had a National party government - Robert Muldoon issued a press release saying: Next year (1976) the government would introduce legislation to abolish the Superannuation scheme and this legislation would have retrospective effect (make it as if the Act never existed) - The money paid would be returned - There was no doubt that this enactment would be passed - Because of the impending legislation, employers should immediately cease making contributions to the scheme and the Superannuation board should stop chasing employers for payments Fitzgerald (teacher) challenged this.

Webb, sanders and Scott: Role of AG

- Technically, the AG is a member of the executive and is most often a Cabinet Minister - By this definition, the AG is also a member of the legislature - However, the office is also called upon to exercise judicial functions (stay of criminal proceedings) Entirely inconsistent with a pure separation of power theory.

Webb, sanders and Scott: close relationship between functions of executive and legislature

- initiation and passage of legislation - membership - GG

Australia's written constitution states:

1. The national government in Canberra has the power to make law on certain topics 2. The individual states or regions (who each have an elected government) have the power to make decisions on all other topics If the central government tries to legislate on topics it is not allowed to (or vice versa) then those laws have no legal authority of validity.

Geoffrey and Matthew Palmer; example

A ruler with absolute power may do all of the following things: a) pass a law making shop-lifting an offence punishable by death b) direct police force to apprehend only shop-lifters c) adjudicate on all cases of shop-lifting to decide who is guilty of it d) execute offenders Would be carrying out all three functions

Webb, sanders and Scott: why is it not necessarily desirable to adhere fully to the theory of separation of powers?

Because close and coordinated interaction, between the three branches may facilitate more effective government Reaches an appropriate balance

Webb, sanders and Scott: Legislative branch

Chooses whether to pass it and turn it into law

Webb, sanders and Scott: AG v Ngati Apa

Court concluded that Maori customary rights to the seabed and foreshore had not been extinguished by general legislation. This prompted change in executive policy and a swift legislative response

Did Muldoon suspend the law or the execution of law through his press release?

Didn't expressly instruct anyone to ignore law BUT obvious implications of his press release were that people would ignore the law (only way to stop payments would be to ignore the law). In practice, by telling people to stop payments, his purported suspension was effected.

Functional Separation of Powers:

Divide the powers between different branches of government (Executive, Legislative, Judiciary).

Geographical Separation of Powers:

Divide the powers on a geographic basis (e.g. different regions or states have the power to decide certain issues for themselves). Certain states can decide some issues while others are decided centrally This is called federalism and can be seen in Australia.

Judicial Branch:

Enforces and interprets the law in different cases. They have judicial independence to ensure separation and no influence from politics.

Why did Fitzgerald challenge the press statement?

He thought it was wrong; until such time as the Superannuation Act was repealed by Parliament, it remained law and only Parliament could repeal it. Under this Act employers were required to make payments and the board were required to chase people. Robert Muldoon was effectively telling people to ignore their legal obligations and act against the law. --> Statement against the law!

2. If so, did he purport to do so by regall authority?

He wasn't literally King, but his position as Prime Minister (Head of Executive) means he is the sovereign's adviser. His effective power meant that he should, for the purposes of s 1 Bill of Rights, be seen as having regall authority. Making an order which the public followed showed that he possessed regall authority. He had also been recently inducted after the election. Muldoon was the sovereign's principal advisor and the fact that everyone followed his instructions shows an exercise of regal authority.

Webb, sanders and Scott: concern under First-past-the-post (FFP) electoral system

In theory, executive should always be answerable to Parliament, but in practice the executive has had a strong influence in Parliament. Under FPP, the government could pass any legislation it initiated, because it *controlled a majority of seats in the HOR and created legislative policy through cabinet*

Webb, sanders and Scott: Governor-General

Is the formal head of the executive branch and is also required to assent to legislation before it becomes law

The theory seeks to ensure...

that each branch of govt. is cofined to its functions and does not encroach on the functions or powers of others

Webb, sanders and Scott: Judicial appointment

Judges are appointed to the Bench by the GG, by convention on the recommendation of other members of the executive (Chief Justice appointed on recommendation of PM; AG recommends appointment of judges to SC, DA, HC and DC)

Case of Proclamations (1611)

King made heaps of proclamations which would help him make money and asked for a judge to verify that he could do it. Judge decided he did not have this power as proclamations are not a recognised form of law. Highlights Conflict between sovereign and Parliament. Judiciary holds power to decide legal questions and to hold Exec and Legislature to their roles under power ensured upon it by our constitutional set up. Principally, it established that the Monarch could make laws only through parliament when a case involving an alleged exercise of prerogative power came before the courts, the courts could determine: whether the proclaimed prerogative existed in law and how far it extended; whether it had been limited by statute, and if so, in what way; and whether there was any requirement that The Crown pay compensation after the exercise of the prerogative.

Webb, sanders and Scott: delegated legislation today

More stringent system of checks and balances has been implemented. Parent statutes now identify the purpose for which the power is delegated more specifically.

Muldoon; conclusion

Muldoon purported to suspend the law and did so with regall authority. He didn't have Parliament's consent and thus acted in breach of s 1 Bill of Rights and acted unlawfully. 'For the reasons given I must conclude that the PM's public announcement of 15 December was illegal as being in breach of s 1 BoR and that the plaintiff is entitled to a declaration to that effect.

Webb, sanders and Scott: delegated legislation in the past

Parent statutes, defining the paramaters of the delegated powers were so widely drafter that they enabled the making of subordinate legislation that more properly should have been dealt with through Parliamentary process.

Webb, sanders and Scott: Parliament and judiciary

Parliament may enact any law it pleases and the courts must apply the law as enacted.

Webb, sanders and Scott: one further check on delegated legislation

Regulations (Disallowance) Act 1989 - allows MPs to object to subordinate legislation. HOR may then, by resolution, disallow, amend or substitute the regulations.

Webb, sanders and Scott: Relationship between judiciary and executive

Sometimes there may be an overlap in membership. E.g. judge may be called upon to exercise executive function as Royal Commissioner. BUT while sitting as Royal Commissioner, judge does not continue to exercise their judicial functions

Webb, sanders and Scott: Fitzgerald v Muldoon

Statement by PM that purported to abolish a superannuation scheme established by statute was declared invalid by the Court. PM had attempted to suspend existing law. This attempt was *repugnant to the sovereignty of Parliament, as no person is recognised as having the right right to set aside, by declaration or otherwise, the legislation of Parliament.*

Diceys law of the constitution; Parliamentary supremacy

The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever, and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.

Unitary system

What we have in NZ e have a central government (in Wellington). We also have local governments (e.g. DCC) but these bodies only have rule-making power on certain issues because the central government gave them these powers through statute. The central government has the power to take away these powers through another Act of Parliament (which cannot happen in federalism)

The later parts of the announcement...

amounted together to 'an unequivocal pronouncement that the compulsory requirement' payments were to cease.

Webb, sanders and Scott: Executive and Legislature together...

are referred to as the political branches (but have distinctive roles and one cannot do the job of the other)

Webb, sanders and Scott: convention; cabinet ministers

are required to be accountable to parliament

In NZ, the separation of powers is not STRICTLY separated,

as the legislative and executive branch are closely and deliberately intertwined.

Webb, sanders and Scott: how else do legislature and executive overlap

delegation of lawmaking powers to executive branch

Checks and balances;

different institutions with different powers check the other institutions. This means that the power is balanced within government as a whole.

By remaining separate...

each branch checks and balances the others

Executive Branch:

executes the law and puts the law into practice. Makes the government operate day-to-day. Create the Bills which are then made into law (statutes) by the Legislative branch.

Webb, sanders and Scott: Judges are expected to be...

free from political influence

The separation of powers doctrine proposes a theory of constitutional government that...

identifies the functions of the three branches of govt. and argues that the branches should be independent of each other in order to maintain accountability, fairness and liberty.

The doctrine is based on the rationale that ...

if the same institution or person exercises more than one function, the powers of the government will be abused.

Each function should be exercised...

individually by three institutions

Webb, sanders and Scott: Judicial decision making can also..

influence Parliament and the executive.

Webb, sanders and Scott: Judicial decision making may

influence policy and prompt legislative initiatives

Webb, sanders and Scott: the deliberate use of broad terminology...

is in effect, Parliamentary delegation of a lawmaking function (to judiciary)

Webb, sanders and Scott: Judicial branch

is kept separate and independent as a check on the political branch. While it can make law, its law making function is subordinate to Parliament. Executive action is subject to review by the judiciary. *Interprets legislation and develops legal principles through the common law and by application of the doctrine of precedent.*

Webb, sanders and Scott: under new MMP electoral system...

minority governments are possible. This means that the passage of government-initiated legislation requires the support of other parties in the House of Reps. Securing a legislative majority is by no means certain for a minority government.

First two paragraphs were...

only an indication of the government's intentions

Webb, sanders and Scott: PM (head Minister) holds that position...

only if they have the support from the majority of the House of Representatives

In doing so Muldoon was...

purporting to suspend the law without the consent of Parliament. Parliament had made the law. Therefore the law could be amended or suspended only by Parliament or with the authority of Parliament.'

Webb, sanders and Scott: administrative tribunals

technically part of the executive, but are also called upon to exercise quasi-judicial functions

There could be no liberty if

the three powers were not separated.