Public law semester one

BINGHAM - RULE OF LAW good quote:

"All persons and authorities within the state, whether public or private , should be bound and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts."

Constitution Act 1986 - section 15

(1) The Parliament of New Zealand continues to have full power to make laws. (2) No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend to New Zealand as part of its law

section 10 Constitution Act 1986 ss (1)

(1) There shall be a Parliament of New Zealand, which shall consist of the Sovereign in right of New Zealand and the House of Representatives.

Three presumptions of interpretation:

- Common law presumption that legislation is capable of being interpreted consistently with international law - Statutory presumption that legislation is capable of being interpreted consistently with the NZ Bill of Rights Act 1990 (s 6) - Common law presumption that legislation is capable of being interpreted consistently with fundamental rights recognised by the common law (the principle of legality)

Falkner v Gisbourne District Court

- Is common law of england still applicable after the Imperial Laws Application Act 1988? - The law was existing in England on 14 January 1840; - It was applicable to the circumstances of NZ; - It was in force in NZ prior to the commencement of the English Laws Act 1908 - It was part of the laws of NZ prior to the commencement of the 1988 act.

• Parliamentary Sovereignty

- Parliament has the legal capacity to act in all matters - may legislate without restriction on any subject matter. - Can impede on the Rule of Law (Bingham) -the courts must enforce legislation passed by a sovereign parliament

• Constitutional Monarchy

- The queen reigns as head of state yet has limited power under the constitution. -democratic branches of government How? • The queen acts on the advice of her ministry o There must always be a ministry to advise

Constitution Act 1986

- s 15 power of parl to make laws 17 term of parliament 23 removal of judiciary 24 salaries cant be changed -judiciary

statutes which protect judicial independence?

- NZBORA 1990- guarantees a person charged with an offence "the right to a fair and public hearing by an independent and impartial court". -

what must you do to determine If a police search is illegal?

was the warrant general? general warrants are invalid (dotcom) the warrant will be general when: - the warrant is broad in its term so that material irrelevant to the offence can be seized. (dotcom) -the warrant is not specific (dotcom) - search warrants MUST be specific.

unwritten constitution: legal status

• Made up of a range of sources (not all legal rules) • Part of ordinary system of govt • Judiciary can't override parliament • Amendment through ordinary political processes(Flexible)

why was a judicial appointments commission opposed?

- three past attorney-generals expressed distrust of a formal bureaucratic structure. -appointing commission members would be highly political, creating potential for convert political influence. -the members of the commission would dominate discussions and entrench a non-representative judiciary, rather than promote diversity within it. (they would choose judges like themselves).

What is the formal conception of the ROL

-(Operation/content) - formal attributes and the manner in which the law was promulgated -Manner in which the law was Promulgated (was it by a properly authorised person, in a properly authorised manner?) -Clarity and accessibility -Properity (retrospectivity) WHAT IT IS NOT: -NOT concerned with whether the law is good or bad -does not pass judgment upon the content of the law itself.

What is the substantive conception of the ROL

-Accept the ROL has the formal attributes but wish to take the doctrine further. -Substansive rights are to be drawn from the rule of law which are then used to distinguish between good laws, which comply with such rights, and bad laws which do not. -Concerned in addition with the content of the law -Consistency with fundamental human rights

Joseph Raz- FORMAL CONCEPTION OF ROL

-Government action authorised by law -law must be Passed in correct legal manner -ROL should not be substantive because passing judgment on whether or not the law is good would rob the concept of any function independent of political theories. -Law should be capable of guiding one's conduct: >Prospective (vs retrospective) > Relatively stable--> don't change constantly > Particular laws guided by open, general and clear rules. >Independent judiciary/Access to the courts >Discretion constrained by purpose of rule -Only one virtue of the legal system - may need to be sacrificed to achieve other aims.

Matthew Palmer- CONCEPTION OF ROL

-Rule of law requires "law" being given an objective, independent existence -Reliant on separation of powers -Our values of egalitarianism, authoritarianism and pragmatism don't essentially support the rule of law in NZ. -the ROL is vulnerable in NZ - Fitzgerald v Muldoon- declaration that the PM has breached BOR 1688 by purporting to suspend parliament's law without its consent- reflects Dicey's "no exercise of arbitrary power"

presumption against retrospectivity: Basic constitutional (rule of law) principle: legislation should be prospective

-basic const principle: legislation should be prospective - however the principle is not absolute, as stated in the Burrow and Carter reading -Courts determine how objectionable the retrospectivity is on a scale of positive retrospectivity (community benefit) at one end and Highly objectionable retrospectivity (retrospective criminal liability/penalties) at the other. general presumption against retrospectivity: >common law >interpretation Act 1999, s 7 specifically criminal law protections: >crimes Act 1961, s 10A: no retrospective liability for criminal offence. >sentencing Act 2002, s 6: right, if sentence varied since committed, to benefit of lesser sentence. >PRE 2002- criminal justice act 1985, s 4 (2). >NZBORA, ss 25 (g) and 26 (2), also confirming the right not to have criminal liability, or increased criminal penalty, imposed retrospectively.

how are judges appointed?

-judges are appointed on the attorney generals recommendation. -if the candidate accepts appointment, it is announced to cabinet and recommended to the GG.-the attorney exercises an independent function not shared by other ministers and is the formal constitutional link between the judiciary and the govt. -judicial appointments are not the subject of cabinet discussion- the attorney-general announces an appointment in cabinet and then formally advises the governor-general of the appointment. - the attorney recommends appointment of judges to all courts (apart from Maori courts) -However, the PM continues to recommend the appointment of the Chief justice who presides over the supreme court and is head of the judiciary

BINGHAM - RULE OF LAW (8)

1) The law must be accessible, intelligible, clear and predictable (D's 2nd) 2)Questions of legal right and liability should ordinarily be resolved by application of the Law and not the exercise of discretion (D's 1st) 3)The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation (D's 2nd) 4)The Law must afford adequate protection of fundamental human rights (substantive) 5)Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve (D's 2nd) 6)Ministers and public officials at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers (D's 1st) 7)Adjudicative procedures provided by the state should be fair (D's 2nd) 8)Compliance by the state with its obligations in international law

DICEY - RULE OF LAW

1)Absence of arbitrary power: -No one to suffer detriment at whim of official. -Breach of law to be established before ordinary courts entick v Carrington- "if it is law, it will be found in our books" 2) Equality before the Law: -No one is above the Law. -Subjection of officials to ordinary law entick v Carrington- law of trespass applies to the king's messenger 3)The constitution emanates from ordinary law. -General principles of the constitution are the result of judicial decisions entick v Carrington- example of a judicial decision giving rise to constitutional protection of civil liberties.

two ways we might get tested on ROL in test

1st way- given a piece of legislation or a policy and you'll be asked to critique it using constitutional principles: it is likely to be a fake piece of legislation with sections which are arbitrary etc. critique it as to whether or not it is in line with the rule of law. -->give reasons why it is or isnt--> can talk about Dicey 2nd way-- determine whether the actions of someone (e.g.police) was lawful--- think about it being a legal action --sources of law --if it is a legal action in court you need to rely cases and relevant legislation.

Constitution Act 1986- s 23

A Judge of the High Court shall not be removed from office except by the Sovereign or the Governor-General, acting upon an address of the House of Representatives, which address may be moved only on the grounds of that Judge's misbehaviour or of that Judge's incapacity to discharge the functions of that Judge's office.

Connor case

A statute conferred a benefit on "widows". This particular widow had achieved the status by killing her husband. There is a common law principle that a person should not benefit from their own wrong. -----The Judge create an exception that was not spelled out in the statute: Parliament couldn't possibly have intended that a widow who murdered her husband should benefit!

ENTICK V CARRINGTON

Dicey's ROL: 1)Absence of arbitrary power: entick v Carrington- "if it is law, it will be found in our books" 2) Equality before the Law: entick v Carrington- law of trespass applies to the king's messenger 3)The constitution emanates from ordinary law. entick v Carrington- example of a judicial decision giving rise to constitutional protection of civil liberties. FACTS: Trespass - Messengers of the king broke into someone's home and searched and took items ISSUES: Issue 1: Did they have a warrant to search the house Issue 2: Did the Secretary of State have jurisdiction to seize defendants papers OUTCOME: Policy) If the issues are found in favour of the SoS, then he has the power to search any house who he has believed has written seditious libel. The right to secure property must be preserved in all instances (where it hasn't been taken away for the public good.) If a trespass occurs - he must show a "positive" point in the law which allows him to do so. "Silence of the books is an authority against the defendant." [SOS

search warrant cases

Dotcom -search warrants must be specific-->the warrant was very general in this case-->gave them an opportunity to go and look around at anything. -courts will read statutes narrowly. R v Hamed -Warrants must be in accordance with the statute (statute didn't allow for anticipatory warrants). -disagreement between judges as to whether police have same powers as ordinary citizens. Entick v Carrington -same laws apply to officials as to ordinary citizens. -need authorisation to search.

ROL CASES

ENTICK V CARRINGTON DOTCOM V ATTORNEY GENERAL R V HAMED

R v Pora (Elias CJ, Tipping J, and Thomas J):

Elias CJ (and Tipping J) and Thomas J: -the doctrine of implied repeal may not operate where 'fundamental rights' are involved. - presumption of implied doctrine repeal and approach to interpretation that general words do not repeal earlier statutes dealing with a special subject. Elias CJ rejected these approaches as being 'mechanical rather than purposive'. -the correct approach of interpretation was to determine which of the two inconsistent provisions is the leading one. -parliament must speak plainly if it wishes to 'derogate' fundamental principles. General or ambiguous words will seldom be sufficient. WHY? Serious damage could be done to fundamental rights if the legislature makes an error of law. Thomas J: -accepted Parliament is supreme and can abridge rights. however, any intent to abridge rights 'must be plainly evident'. - usual rules of interpretation are arrested where fundamental rights are involved. the problem for the court was not the meaning of s 2(4) or s4(2) but their conflict. Section 4(2) was the dominant provision because it 'embodies a fundamental human right' and was passed to give effect to NZ's commitment to the ICCPR. Also referred to NZBORA. - noted rules of interpretation are 'judge made'. Quoted Lord Reid 'they are not rules in the ordinary sense of having some binding force. They are our servants not our masters.' REMEMBER- important to remember that the propositions relating to a 'rights centred' approach in the minority decisions are not necessarily definitive statements of the current NZ law.

Presumptions on interpretation

Fundamental rights cannot be overridden by general or ambiguous words (R v Secretary of State) Three Presumptions: 1. Common law presumption that legislation is capable of being interpreted consistently with international law 2. statutory presumption that legislation is capable of being interpreted consistently with NZBORA. 3. common law presumption that legislation of being interpreted consistently with fundamental rights recognised by the common law (the principle of legality). To do this the courts might: give an artificial construction to the text give a narrow construction to general words read an implied qualification into an apparently absolute statutory provision give a narrow interpretation to provisions which confer officials powers which could infringe individual liberty (e.g. search, questioning) narrow construction to as to infringe individual liberty as little as possible. hold common law rules continue to exist alongside the statute question in each case: at what point would "interpretation" become effective repeal?

thoburn v Sunderland city council

Implied repeal - presumption of interpretation case - should recognise a hierarchy of "ordinary statutes" and "constitutional statutes" (statute which a) conditions the legal relationship between - the ordinary rule of implied repeal has no application on "constitutional statutes"- it must be express repeal.

Hopkinson case

It is an offence to destroy flag with intent to "dishonour" it. Hopkinson burned a flag as part of a political protest. To prosecute him would have been an unreasonable limitation on his freedom of expression. -----Judge gave a narrow construction to the word "dishonour". It is not enough just that the flag was "disrespected"; he needed to intend to "vilify" the flag.

What are two elements of judicial independence?

Judicial independence: about the relationship with the other branches of govt -the focus is on the status of the court/judge Judicial impartiality: -about the judge's state of mind in relation to the parties/issues in the particular case.

R v Pora (Keith J, Gault J and McGrath JJ):

Keith J( Gault J and McGrath JJ): -prepared to give a strained interpretation to a statutory provision to limit that provision's adverse effect on fundamental human rights and constitutional principles. - s 5(1) interpretation Act 1999- must be ascertained from its text and in the light of its purpose- the meaning and purpose of s 2(4) is clear- parliament clearly directed the courts to apply new sentencing powers for home invasion murders to murders committed earlier than July 1999. - Keith J said, this was 'not a case of fundamental rights being overridden by general or ambiguous words' because the legislation was clear.

Hamed v R

ROL case Blanchard J (majority): -statutory authorisation to trench on a longstanding common law right (trespass) being read narrowly. >doesn't allow for "anticipatory" searches >collecting images of persons is not a search for a thing on the land. >police looking for something they have left on the land cannot be the subject on a search and seizure. Elias CJ: -state officials don't have the same freedom of action as an ordinary citizen - "the executive must point to lawful authority for all actions undertaken". -"private person are free to do whatever they want to do which the law does not prohibit but public bodies actions must be justified by positive law". -they need positive authorisation for all actions (authorised by statute). WHY? - "equivalent liberty for public authorities would destroy individual liberty" - ROL values of certainty and predictability. Tipping J: -police are entitled to do what any member of public can do in same circumstances. Is covert video surveillance unlawful at common law?? -if it involves a trespass: >unanimously held YES, unless parliament amends the law to provide specific statutory authorisation. if it doesn't involve a trespass (i.e. is in a public place) Elias CJ: -Yes, unless parliament amends the law to provide specific statutory authorisation Tipping J: no, statutory authorisation is unnecessary Majority of court: do not give an answer to the question

Dotcom v Attorney General

ROL case Facts/Issue: -Dotcom seeks judicial review of warrants issued by the North Shore DC, and used by the police. Allegedly unlawful because the search warrant was unreasonably Broad in their terms and lacking specificity as to the charges the warrant was based on. S21 NZBORA- freedom from unreasonable search and seizure. OUTCOME: Warrants were too broad and allowed attainment of relevant and irrelevant information. HELD: In search of seizure context, rule of law protected by: -need for statutory authorisation to trench on a longstanding common law right (Entick) -statutory authorisation read narrowly -general warrants prohibited -search warrant must be specific as to nature of offences, and location and subject matter of search. Authorising statutes generally also requires: -involvement of judicial officers in authorising warrants. -requirement of reasonable grounds before warrant authorised.

•How might we decide where particular legislation sits on the sliding scale that Burrows and Carter refer to?

Retrospective legislation is only objectionable if it takes away rights or defences, makes unlawful things that were lawful when they were done, or attaches a tax or other liability to something done in the past. The retrospective imposition of criminal penalties is the most extreme example of unjust retrospective legislation.

•Why are not all retrospective laws seen as unjust?

Some retrospective laws re unlikely to be seen as unfair by citizens or a special class who get the benefit of it. For example, a lower tax rate, an exemption from tax.

• Responsible Government

The executive is located in parliament and is wholly responsible for the actions of govt. -executive ministers must also be members of parliament. -subject to scrutiny by parliament for their ministerial responsibilities (collective respons/individual respons) • The ministry • Is drawn from the house • Is responsible (accountable) to the house. • Must maintain the confidence of the house

• Representative Govt

The government is representative of the people it has power over. How? o House is democratic election • Free periodic elections • Universal Suffrage

Constitution Act 1986- s 24

The salary of a Judge of the High Court shall not be reduced during the continuance of the Judge's commission.

Drew case

The statute said that the government "may" make regulations relating to prisoner disciplinary proceedings. The government made regulations that denied all prisoners the right to legal representation. This was inconsistent with the common law right to a fair hearing. ----- The Court of Appeal gave the empowering language ("may") a narrow interpretation: the general authorisation to make regulations cannot have been intended to allow regulations that breached the right to fair hearing.

Constitution Act 1986 - s 17

The term of Parliament shall, unless Parliament is sooner dissolved, be 3 years from the day fixed for the return of the writs issued for the last preceding general election of members of the House of Representatives, and no longer.

judicial independence- extra legal limits

constitutional conventions: convention precludes judicial appointments being made as a reward for political favours. - ministers and public servants must refrain from criticising judicial decisions. Ministers may comment on punishment policies or the effectiveness of the law but they may not impugn the performance of the courts. -ministers may not reflect adversely on the impartiality, personal views or ability of a judge. - judges are apolitical- they do not engage publicly in political or contentious issues and do not reply to criticism of their judgments.

what does judicial independence depend on?

depends on: -security of tenure: >the sovereign or the GG may exercise the removal power following an address of the HOR moved on either ground (misbehaviour or incapacity). >District court judges can be removed by the GG on advice on the Attorney-General without an address of Parliament on the grounds of inability or misbehaviour. >all judges (superior courts and inferior) must retire at the age of 70. >Constitution Act 1986- s 23 protection against judges removal from office -financial security >Constitution Act 1986- s 24 salary of judges not to be removed. >NZ also have independent salary fixing bodies for periodically adjusting judicial salaries -administrative independence. > the public interest in impartial adjudication trumps considerations of administrative cost, convenience and efficiency in the disposition of cases. >to be institutionally independent, the courts must be separate from the central bureaucracy under the control of govt ministers.

R v Pora

facts: pora committed murder in 1992. he was sentenced to life imprisonment. in 1999 his conviction was set aside but in 2000 he was convicted in a re-trial. he was sentenced to a min term of 13 years. -Doctrine of implied repeal is just a rule of thumb -court's job is to decide which of the two provisions is "dominant" (Elias CJ). Circumstances: its prominent place in the Act- is it near the beginning or end of Act?, its importance as a statement of fundamental principle, the language in which it is cast ("notwithstanding any other enactment [s 4(2)] ) -the drafting history (parliament may not have appreciated that s 2(4) retrospectively applied a "penalty" - did they realise?) -the principle of legality (if they are going to override a principle right, they need to do it clearly) -Specific vs general conflicting provisions- (specific is usually more dominant) -context- independence/ consistency with international law.

retrospectivty case:

poumako

Ellen Street Estates Ltd v Minister

presumption of int case implied repeal- orthodox doctrine - If in a subsequent Act, parliament chooses to make it plain that earlier statute is being to some extent repealed, effect must be given to that intention just because it is the will of the legislature.

R v Poumako

the court tried to find alternative intepretations of an Act to prevent the retrospective increase of a penalty (part of the principle of legality). Majority: s 80(2A) imposes a min non parole period for "home invasion". "home invasion" was unknown to the law prior to 2/6/99-->therefore s 80(2A) only has 2 weeks retrospectivity. Henry J: the words are clear, unambiguous and certain.

Unwritten constitution: what is contains

• No single statement of values and aspirations • No ability to specify federal division of powers • Describes key institutions of State and their powers • Includes rules that protect human rights • Embraces all rules and principles relevant to "public power and how it is exercised" • Boundaries of what is constitutional is unclear/overlaps with other area of law.

written constitution: legal status

• One document with special symbolic and legal significance • Comes before and establishes the system of govt • Usually higher status (sits above govt) • Generally enforced by judiciary • Usually entrenched (Rigid)

Written Constitution: what it contains

• Preamble (stating Values & aspirations) • sets up key institutions of state and their powers • protection of human rights • Mechanisms to change the constitution • Head of State • federal division of powers

bill of attainder (poumako)

• What is a bill of attainder? A Bill which the legislature prescribes by legislative act the punishment for a named or ascertainable individual or group of people. •Why does he argue that this Act is a bill of attainder? In this case, the member who introduced the retrospective provision stated the provision would affect those who were then before the Courts "on murder charges in the context of home invasion". Singling out a certain group on people. •What does Thomas J say may be the consequences of a finding that this is a bill of attainder? the courts would avoid confrontation with parliament. But if the court is to defend the integrity of the judicial function it will have no alteration but to confront the issue head on.

Treaty of Waitangi

•Source of legitimacy of our entire constitution and legal system •Content of the Treaty relates to public power: o A power-sharing agreement between iwi and the crown o Guides the way public authorities should exercise power with respect to Maori interests •Actual impact on constitutional actors: o Not a source of binding law that the courts can enforce directly o But impacts on public decision making in a number of ways, eg •Courts use it as an aid to interpretation of statutes •Through treaty clauses (s9/27 of the SOE act) •Used during cabinet decision making •The Waitangi Tribunal has power to make (generally non-binding) recommendations

Fitzgerald v Muldoon

•s1 of the Bill of Rights (1688) - "That the pretended power of suspending laws or the execution of laws by regal authority without the consent of parliament is illegal." •"Regal Authority" - How can you compare the Prime Minister to "regal authority"/king? As a senior figure being the head of the executive. It was made in the course of his official duties and therefore through his "regal authority" Important parts: • Law can only be changed through parliament • S.O.PThe PM is not the leader of the legislature- he is the leader of the executive • PM according to s 1 NZBORA has no power to suspend/create/change law - Dicey's ROL- No exercise of arbitrary power (Palmer reading).