Laws 121

Disputes Tribunal involves cases involving up to

$15,000 or $20,000 if all parties agree. Mediation and adjudication occur. Result is binding.

role of the executive + what comprises it?

(government - PM, Ministers of the Crown, supported by the public service): administers law.

"activist" judges...

(those making law) were once criticised for acting unconstitutionally and usurping PS. This perception has changed and it is now accepted that judges do indeed make law. A new precedent will be created if material facts differ from existing precedents (it should be distinguished).

North Shore City Council v Body Corporate 188529 (2010)

SC ruled local councils have liability for leaky homes as they must properly inspect buildings.

Electoral amendment act 2010

Smith v a G. Contradicts s12 NzBoRa

The judiciary acts as a check and balance on:

the executive: Review the executive's exercise of power if challenged by judicial review Judiciary can determine the legality of an executive's actions when a relevant case is brought before the court e.g. Fitzgerald v Muldoon 1976 The legislature: Judges interpret statutes as to best avoid injustice Judges are independent from lawmakers and are therefore not beholden to them when making decisions Judges can suggest legal reforms in their judgments and thereby identify improving of the executive's laws.

s12 of NZBORA...

under high-profile, ongoing litigation. The Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 says prisoners don't have the right to vote, even though BORA says they do.

Representative/liberal democracy

vote for people to represent. Not a direct democracy

is NZBORA a living part of legal system?

yes. statutory interpretations consist with it is preferred. NZBORA = s 6 = interpretation consistent with BOR to be preferred. A-G reports to Parliament when Bill appears inconsistent with BORA.

# of CoA judges

10 including president, cases usually heard by 3 but full bench = 5

juries!

12 random citizens. Lawyers, MPs, police officers, convicted criminals, severely disabled people cannot serve as their profession is too closely (directly) interlinked with the law or another reason. Lawyers will challenge the jury (twice the size before it is cut to 12) in court to help ensure a fair and impartial jury. Foreperson is head of the jury (presenting verdict). 11/12 need to agree on a verdict for criminal secures a decision. 75% for a civil trial. Hung juries undermine the defendant's right to due process but it is easy to see why this happens semi-frequently.

# of DC judges

174 led by chief DCJ. They travel on circuit to smaller populated areas due to English tradition stemming ~1,000 years back. 58 family courts attached to DC

Advantages of court hierarchy:

Allows more important legal decisions to be made by higher courts to flow and affect lower courts Division of labour - frees up the time of lower courts who have more cases (DC is busy) Allows for appeals to be made that potentially correct errors and system itself (safeguard) Legal precedents reported (helps judges make decisions, helps lawyers argue cases, helps citizens understand law - links to rule of law making law accessible) Development of the law Leading decisions Iron out inconsistencies Provide certainty to citizens/society

amy adams SOP...

Amy Adams SOP not successful. Legal background. She drafts amendment. She wants two people to be the primary carer at the same time or split more easily. Scenario = birth complications (makes sense for both parents if so). On surface level, aligned with Labour policy so possibly political reasons. ILG says you can't change the definition of primary (semantic reasons). Most likely logistics of flow-on effect of changes in the time constraints under urgency.

St Augustine

An unjust law is not law at all. Humankind's purpose is to achieve goodness. No action is good in itself but rather, contributes to the path of goodness.

how is JI safeguarded?

Apolitical appointments (constitutional convention) More open appointments process can't be sacked easily (not allowed pay cut or offer bonus for changing decision, can only sack for corruption and serious incapacity - CA) Politicians not supposed to criticise Immunity from suit (being sued excluding personal matters)

redress?

Apology from Queen Historical recount agreed upon on both sides Acknowledgement of the breach

is NZ's constitution unique?

Bar the presence of TOW, NZ's constitution is not unique. it's unwritten - a unique fact pertaining to NZ, Britain, Israel

where is judicial independence ensured

CA 1986 (s 23 + 24)

how does the executive check and balance other branches?

Can make it difficult for Parliament (the Legislature) to pass extreme laws if I.e. if not a member bill and not on legislative agenda Can soften laws' impact Officials provide advice to Parliament re Bill of Rights Act 1986 (can still pass because BORA is not supreme)

sources of law

Common law (made in response to problems brought to court. exists through precedent as not written down) Legislation (codifies statute law and common law)

where is the NZ constitution found?

Constitution Act 1986 Treaty of Waitangi Old imperial statutes not repealed by the Imperial Laws Application Act 1988 (e.g. Magna Carta) Electoral Act 1993 Senior Courts Act 2016 & District Court Act 2016 Other important statutes (Ombudsmen Act 1975, Official Information Act 1982, State Sector Act 1988, Public Finance Act 1988) Parliament's standing orders Letters patent Certain important court decisions Unwritten constitutional conventions

threats to RoL

Corruption Exceptions (diplomatic immunity, MPs immune from defamation proceedings from what they say in the house, police force immune from prosecution when acting in good faith during execution of duties) Financial inequalities Large discretions Ouster clauses (in piece of contract/legislation which removes someone's right to access courts) (fire service damages, foreshore and seabed act 2004 - removed right to go to the land court)

Ngati Apa v Attorney General 2003

Court of Appeal. - Labour Government decided that the majority of non-Maori population had fears of being denied access to beaches so ownership was legally vested in the Crown for use of all NZ'ers. Instead of Maori pursuing case in Maori Land court, government passed the Foreshore and Seabed Act 2004. This proved parliamentary supremacy over judicial decisions and was supported by the majority of NZ'ers, despite heavy Maori protest.

DC jurisdiction governed by ...

DC Act 2016. Courts can hear civil and criminal proceedings. Civil cases involving < $350,000 can be heard.

Origin of civil law

Emperor Justinian. Civil Code. Codified 600 years of Roman legal development

features of tribunals

Expertise Discretion Cheaper More flexible Different powers Sometimes private Sometimes use ADR (lawyers not allowed) don't necessarily follow precedent Subject to judicial review and ultra vires as they are part of executive

Example of statute emphasising mediation over litigation

Family Dispute Resolution Act 2013

quick High Court run-down

IJ means - doesn't exist by statute, has existence/legitimacy beyond that stemming from history. You can start cases here - original jurisdiction. It will hear what it needs to hear - general jurisdiction (within boundaries. if no logical place for a case, it will be heard hear. Judicial review occurs here. Murder and high $$ heard here.) 40 judges, usually 1 hears case but sometimes 2. Appointed by GG on advice of A-G.

quick jury trial run-down

Inherited from Britain (see Magna Carta 1215) Common in serious criminal cases (e.g. Alfred Hanlon in Minnie Dean murder case), rare in civil cases Judges rules on law, jury rules on fact Opportunity for NZ citizens to be directly involved in our legal system Problems with attendance Can be swayed by emotion if you have the right lawyer but a strong case should have the same result

how does the judiciary check and balance other branches?

Judges review the exercise of power by the Executive (were decisions ultra vires? Was the process done by judicial review) Judges can interpret statutes (made by Legislature) narrowly to avoid injustice Judges are independent - not beholden to other branches Can suggest appropriate reforms

SoP issues?

Judges sometimes serve on the Executive (e.g. Inquiries) Executive includes semi-judicial tribunals (e.g. Waitangi, Disputes, Tenancy) Executive gives administrative support to judges

deets on early jurists?

Jurisprudence = philosophy of law. It seeks to answer what is law? Civilisations from ancient Greece (without overt religious influence) to now have struggled with this. Judaic law would say law is the ten commandments Moses supposedly received from "god" Socrates: naturalist approach. Wanted his students to learn for themselves and be more moral. Plato: wanted philosopher king to rule government. Aristotle: proponent of natural law. Teleological: belonging to the philosophical approach that looks at ^ greatest legacy = relying on human intellect to explain workings of the world instead of recourse to gods

rights and freedoms affirmed by NZBORA

Life and security of the person Democratic and civil rights Non-discrimination and minority rights Search, arrest, and detention (right to be secure against)

give us the run-down on PPL for law reform

Limited parental leave first provided by Maternity Leave and Employment Protection Act 1980. This was unpaid leave. Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2012 secured 12 weeks of paid leave. In 2016, National increased paid leave to 18 weeks. Two member's bills (sponsored by opposition at the time, Labour, MP Sue Maroney) were unsuccessful. A government Bill (unsurprisingly) in 2017 was successful and part of Labour's election campaign. National employed the financial veto for one of Sue Maroney's member's Bills (2015/2016)- a rarely used strategy. This means annual budget did not account for the Bill.

NZ Maori Council v Attorney-General 1987

Lord Robin Cooke of Thorndon and four other judges laid down principles of Treaty of Waitangi (partnership, active protection, redress, Crown governs, rangatiratanga). concerned s 9 of state-owned enterprises act 1986 (government actions must be in accordance with TOW principles). Labour government in power. The land invested in SOE meant Maori could not resolve TOW settlements. Government intended to go ahead anyway but measures were put in place to slow down the sales. Created S27 protection mechanism on title register.

precedents

Material facts must be same or similar in order for precedent being applied. Judges can expand original rule or extend precedent in cases with new material facts. Exceptions to original rules can set new precedents. They may need to create a new area of law. Most cases don't make precedents. Judges must follow precedent where it applies (same/similar material facts & comes from a higher court & court must follow same jurisdiction) Judges can be bound or persuaded by precedent (think: corbett v social security commission 1962 and bognuda v upton and shearer ltd 1972)

how do lobby groups feel about PPL?

NZ business recommends it doesn't pass b/c taxpayers increased cost and decreased likelihood of returning to workforce NCWNZ supports Bill as they believe it will support women, children, culture change in workplaces + leads to ultimate goal of 52 weeks

Advantages and disadvantages of judges' law making power

Non-representative of population or public wants (not elected so not democratic + made up of old white men and nearly all come from privileged backgrounds so not socio-economically reflective) Law made is secondary (do not use this term as it implies bylaw status. Use common law) I.e. not supreme Common law fills in gaps in law (not big changes and makes decision when parliament doesn't want to decide something - intentional vagueness e.g. NZMC principles) Hard/rare to be dismissed (severe incapacity or ultra vires some of few reasons. There are many protection mechanisms in place by statute so that judges are protected due to risky, important, public nature of role) Judges may not anticipate what could come of their decision - implications or unintended consequences which MPs may consider better by making "supreme" law Apolitical judges (appointed without consideration of their political standpoint) Can adapt to changing legal circumstances (judges = experts, more suited to common law) Not much harm can come to judges unless they bring it upon themselves (free of political pressure and population majority pressure)

why does theory of principles not always translate to reality?

Overlaps between branches. Powers not separated as purely as theory would suggest (executive and legislature / wide regulation making powers delegated / judges have lawmaking power) GG is advised by executive MPs is part of executive (dominates the HOR) however, overlap between executive and legislature minimised with MMP somewhat (look to coalition partners to gain majority of minority lead)

court facts and features?

Preside over jury trials Make law Help people reach settlements Interpret and apply the law Find facts Impartially resolve disputes Decide remedy Features of courts: Compulsory Expert and impartial judge Public Apply rules of evidence Adversarial Bound by law

types of statute

Private Acts (for benefit of particular people/organisations who need to get out of legal pickle. Don't apply to general public. E.g. John Donald Mcfarland 1918) Imperial statutes (made by Britain) -- not one of main three but should be categorised separately Local acts Public acts

CA 1986

Reformed NZ constitution, removed Britain's part in the legal world of NZ from a technical sense If the GG is vacant or unable to perform the function/duty/exercise of power, an administrator of the government can do it instead Solicitor-generals may perform functions of attorney-general Delegations are revocable Although LC was abolished, the HOR stays the same as outlined in CA 1852 (despite this being repealed in CA 1986). Same goes for parliament. No act passed un UK after CA 1986 will extend to NZ. GG can prorogue (termination of a session) or dissolve parliament Constitutional advisory council appointed in 2011

sarah dowie SOP...

Sarah Dowie SOP was successful (increase number of contact hours alongside increases in weeks). Because it flows from the change/logically makes sense (bipartisanship. Drafting oversight from Labour).

some extra info on PPL for the hell of it

Sue Maroney's 2012 Bill didn't get far. It was opposed by National, Business NZ, some in the business community. The 2015/2016 version got further but had a financial veto. Most people support the idea of doing the best for families but there is disagreement over how the best way to do this is. S 7 report on PPL said discrimination may be present but it is justifiable. ILG's speech relies on emotions, comparative argument, statistical/clinical argument JC has difficult act to follow as she has responsibility to poke holes in argument. She argues on process (lawyers try to do this for weak cases/arguments)

what is supreme law?

Supreme law is the highest law in the land. Ordinary law which clashes with supreme law will be declared void by the courts. This is usually entrenched, meaning it usually requires 75%+ of Parliamentary support and can only be changed by that public majority or public referendum.

what four parts is the CA 1986 divided into?

The Sovereign (with a focus on the Governor-General) The executive (with a focus on ministers and other senior public officials The legislature (with a focus on the powers of parliament) The judiciary (with a focus on judicial independence)

The legislature acts as a check and balance on the executive:

The legislature publicly scruntinises the budgets and activities of the executive during question time, thereby holding it to account The legislature's regulations review committee monitors the regulations or relegated legislation passed through the executive council to check they are fair The ombudsman investigates public complaints against the executive The judiciary: Legislature can override the common law by passing a law that overturns the judge's decision Legislature can sack judges as quality control for the judiciary

The executive acts as a check and balance on:

The legislature: Sets the legislative agenda, thereby controlling the majority of the laws that the legislature is able to pass ad preventing it from passing extreme laws The executive administers the law (through the public sector) and is therefore able to soften the impact of laws made by the legislature Executive officials and the attorney-general advise the legislature on the NZ BORA 1990 and can therefore express when a bill conflicts this

Plato, Socrates, Aristotle

Their legacy is relying on human intellect to explain workings of the world instead of recourse to gods

compare NZ constitution to US

US has a written constitution which is supreme, compiled in 1787 Ours is simpler: Unicameral (similar nations have two houses) Not a federal system with states or provinces

statutory interpretation

Understanding parliamentary intent and the purpose of the Act in question factors heavily into statutory interpretation. Statutory interpretation rules: Literal rule (statutory words given their ordinary meaning) Golden rule (words given extraordinary meaning to avoid absurdity of an Act) Purposive approach (judges to take a fair, large, liberal approach to legislation + interpret provisions consistent with Parliament's intent at the time & purpose of the Act)

quick DC run-down

Used to be called magistrate's court (people's court) Faster than HC, not focused on whether it's making precedent General starting point Has divisions (Family + youth because these sensitive matters need their own tailored approach)

Plato

Wanted philosopher king to rule government

what does the Official Information Act 1982 do

allows any information held by the government to be presumed available for the public to scruntinise unless there is a strong argument fitting within the act which could justify withholding it. This act covers information in relation to others. Whereas, Privacy Act 1993 covers information personal to you. Complaints can be lodged if information release takes too long. These would be investigated by the Ombudsman (parliamentary officer - responsible to legislature - investigating complaints against executive)

judges are...

apolitical and objective. This is an important part of Judicial Review and therefore how the judiciary acts as a check and balance on the judiciary.

St. Augustine

applied Plato to Christian teachings. An unjust law is no law at all (lex iniusta non est lex) the purposes and end results of phenomena rather than causes or means. He argued humankind's purpose was to achieve goodness. No action could be good in of itself, rather contributing to the path of goodness.

judges mechanically

apply legislation to facts when both are clear. They will need to focus more on interpreting legislation if it is unclear and think laterally with complex facts. In NZMC v A-G 1987, judges made law defining principles of TOW as legislation (SOE 1986) was unclear. Parliament is perceived to have done this intentionally as it wanted the judiciary to have that freedom to set that precedent.

Westminster democracy

based on British system. Westminster is name of British parliament. This means we have a Cabinet, Parliament, House of Reps and monarch, civil service, conventions play role, unwritten

Dame Sian Elias

became NZ's first (female?) CJ in 1999. QC in 1988 + HC judge in 1995 + head of SC in 2004.

why is judicial independence important?

because of SoP doctrine + credibility (independent, objective decision making)

Cicero (politician) divided laws into...

categories: divine, natural, positive (human)

Employment Relations Authority is similar to ...

civil jurisdictions. It investigates facts presented. Informal compared to EC.

Emperor Justinian

constructed seminal code of law form 600 yrs of roman legal development. Civil Code (Corpus Juris Civilis) formed civil law. Code contained Institutes (textbook for legal students), digest (jurisprudential writings), codex (collection of legislation and principles), novels (proposed new laws).

Terranova Homes v Service and Food Workers Union 2014

demonstrated the importance of appeal. Rest home workers concerned with equal pay under Equal Pay Act 1972

why was PPL bipartisan?

different governments have increased number of weeks

Rights of an arrested person...

entered statute in 1297. Now found in s 22 of nzbora. Everyone has the right to be told reason for arrest, consult a lawyer, remain silent.

Supreme Court...

established by Supreme Court Act 2003, hearing its first case in 2004. It usually only hears cases from the Court of Appeal. S 74 of Senior Courts Act 2016: Supreme court mustn't give leave to appeal unless satisfied it is necessary in justice interests for court to hear and determine the appeal. It is necessary in justice interests for SC to hear and determine proposed appeal if: Appeal involves matter of general/public importance A substantial miscarriage of justice occurs or may occur The appeal involves a matter of general commercial significance Issues relating to TOW is a matter of general or public importance in relation to subsection 2A

the executive council...

formally confirms Cabinet decisions, formally advising GG to make orders in council implementing government decisions.

Supreme Court helps to create...

indigenous jurisprudence - law made by NZ instead of UK judges.

role of judiciary + what comprises it?

interpret law and create law through precedent (common law) -- (judges, courts).

St. Thomas Aquinas

legal Christian legal theorist. He formulated spiritually and practically convincing legal philosophy. Hierarchy = divine law, natural law, positive law. didn't support that unjust laws shouldn't be followed. Reason could be used to explain the workings of society and suggest the best courses of action

judiciary...

less powerful than other branches. It oversees executive action, creates precedent, resolves private dispute, adjudicates criminal prosecutions, and interprets legislation.

Right to Life New Zealand Inc v Abortion Supervisory Committee 2012

made in SC. right to life claimed certifying consultants provided abortions on request via danger to mental health category. SC said Parliament was to determine if the law was operating and RTL couldn't question how CCs came to conclusions.

the executive...

makes decisions in government. Its key institution is the cabinet - a constitutional convention made up of crown ministers who meet weekly to decide government policy. Each minister has one or more portfolio e.g. Minster of Education and Minister of Finance. The PM officially ranks above all ministers but rarely interferes with their portfolios.

cabinet...

makes policy as the head of the executive. I.e. determines what Bills make it into parliament and controls delegated legislation. Matters are discussed in Cabinet committees (cabinet members looking at specific areas of government) before being taken to Cabinet.

Family Dispute Resolution Act 2013 emphasised ...

mediation over traditional litigation. especially pertinent for issues as sensitive as family relationships

Scholasticism

method of scholarship developed in middle ages, emphasising philosophical justification of Christian theology. In this, is found, a linear approach to jurisprudence. associated with Thomas Aquinas

what comprises the executive?

ministers, public service (armed forces, SOEs, government agencies)

inherent jurisdiction:

pervasive (synonym: prevalent) powers of NZ high court, found in common law rather than statute. Only court to have IJ. HC has unlimited jurisdiction to hear civil cases involving amounts $350,000+. Judicial review is the HC's preserve. 40 HC judges + associate focusing on commercial cases.

Grecian jurisprudence

role of reason, used to explain workings of society and suggest best courses of action

smith v a-g

smith took department of corrections to high court. He claimed his freedom of expression had been breached as he wasn't allowed to wear a hairpiece. Judicial review was granted. Case overturned at court of appeal in 2018 on common law grounds, rather than expected s 14 of NZBORA.

natural law based on belief ...

that there's higher a moral code law must follow (believed to be Christianity during middle ages).

responsible government

the executive (minister) are responsible to parliament