Our legal system today Flashcards
(152 cards)
1
Q
Who falls under the executive branch?
A
- Ministers
- Government agencies
- The Government
- Prime Minister
- Cabnet
- Beehive
2
Q
Who falls under the legislature?
A
- MPs
- House of Representatives
- Parliament
3
Q
Who falls under the judiciary?
A
- The courts
- The judges
- The bench
4
Q
What does the legislature do?
A
- Commonly called “Parliament”
- 120 MPs that debate and vote on bills
- If a majority (50% +1) vote in favour, the bill becomes an Act
- Overall, they make laws
- Parliament’s laws are supreme?
5
Q
Who elects parliament?
A
We the people
6
Q
Does the government make laws?
A
No, parliament does
7
Q
Who becomes the government?
A
The parties that hold a majority of seats in parliament come together to form the government
8
Q
Who becomes the Ministers?
A
The MPs that are members of the majority party
9
Q
What does the executive do?
A
- Executive made up of lots of different entities
- They “execute” the laws created by Parliament
- They also design policies that go before parliament to be debated
10
Q
What does the judiciary do?
A
- Courts make law by resolving disputes
- This law is called common law
11
Q
Structure of the courts:
A
- Supreme Court
- Court of Appeal
- High Court
- District Court
- Tribunals and Authorities
12
Q
Why is judicial independence important? Quote
A
“Judicial independence is essential if the judiciary is to fulfil its constitutional roles of checking the exercise of public power and upholding the rule of law.” - CJ Dame Helen Winkelmann
13
Q
What is law?
A
A system of institutions created by the state with those institutions creating and applying law.
14
Q
What is King Charle’s role?
A
- usually fulfilled by the governor general
- Legislature - confirms laws
- Executive - has important functions in recieving advice from ministers
15
Q
Can ministers be members of parliament?
A
Yes, in fact every minister must be a MP
16
Q
Which two branches of Government have the most overlap?
A
The legislature and the executive
17
Q
Why do we have three seperate entities in our legal system?
A
- Provides checks and balances
- Each branch should stay separate and independent
- We do not have full separation but we do try to keep the judiciary seperate
18
Q
Which laws are supreme?
A
- Legislation
19
Q
Where do the courts laws sit in relation to legislation?
A
They are inferior
20
Q
What is the Doctrine of Parliamentary Sovereignty?
A
- Parliament has full powers to make laws
- Legislation is the highest source of laws
- No other person or body can put aside law that the parliament has made
21
Q
What role do the courts have in the application of legislation?
A
- deciphering and interpreting the meaning of the statute and any ambiguities.
22
Q
Example of the courts’ role in the application of legislation?
A
Fencing Act 1978 - “adequate fence” - what does this mean
23
Q
According to the Constitution Act 1986, who form Parliament?
A
- The sovereign in right of New Zealand and the House of Representatives
24
Q
When does a bill officially become law?
A
- When it receives the royal assent from the Governor General or Sovereign
25
What is the term of Parliament?
3 years
26
How is the government term protected?
It is an entrenched provision in the Constitution Act 1986
- needs a special majority to overturn
27
How many people globally live in a common law jurisdiction?
1 in 3
28
What is the other dominating legal system, particularly in Europe?
Civil law
29
What is the distinction between religious law and law of the people?
Whether the law comes from the people or a religious being
30
Example of religious law:
- Code of Hammurabi
31
What is the code of Hammurabi?
- Early legal code
- Created by the King of Babylon
- Code understood to come from God
- King has direct line to God
32
Example of Law of the People?
Roman law
- developed from the customs and traditions of the Roman People
- Came from the people
- No centralised institution
- Translated into a code
33
Where did civil law evolve from?
Roman law
34
How did Roman law end up in England?
- When Rome conquered England they bought their law with them - 43-426 AD
35
What happened to Roman law when Rome withdrew from England?
- it went away too
36
How did civil law countries have civil law develop?
- When Rome left countries they kept their legal system, this developed into civil law
37
What law filled the vacume in England when Roman Law left?
Anglo-saxon law
38
What is Anglo-saxon law?
- A legal system in which you could summon someone to a moot if they broke a law against you
- no police or centralised court
- moots had doomsmen who decided which party needed to prove their case
- used signs from God
- trial by water / trial by ordeal
- Doomsmen did not consider themselves to be making law, they were relying on signs from God
39
Was Anglo-Saxon law effective?
Not necessarily signs from god - healing fast/slow could be mis-interpreted
40
Did the Anglo-saxons write their laws down?
Some, but very limited to basic principles, but for the most part no
41
Was there variation in Anglo-Saxon Law?
YES! A lot!
42
When did William the conquerer arrive in England?
1066
43
Where was William the Conquerer from?
France
44
What law did France have pre William the Conquerer?
Roman law / civil law
45
Does William the Conquerer impose Roman Law in England?
No, he leaves them with Anglo-Saxon law but he could direct the courts to create consistency.
46
What did the consistency make the law?
Common
47
Where is the term common law from?
The consistency of the law - this made it common
48
When did Henry II come into power?
1154
49
What systems did Henry II introduce?
The writ system / trial by jury
50
What were writs?
- The writ is how you get someone to come to court
- Issued by the King (enforcement power)
51
How were writs an improvement on previous law?
It was now an enforcement to go to court, under Anglo-Saxon law you just had to hope they would come
52
What was trial by jury?
- Panel of 12 men
- Would determine accused's guilt
- Law from the people
53
Did trial by jury exist before Henry II?
Yes, Henry II just systemised it
54
When in particular was the trial by jury system used?
For serious crimes / offences / disputes
55
What did the jury system give the English legal system?
A centralised body - centralised courts
56
How did precedent develop?
When the jury system was introduced judges started to look back at past decisions to see what had been done in similar cases
57
What was the downside of the writ system?
- It becomes really complex and can be unfair
- If you didn't have a specific writ that your issue could fit into you were out of luck
58
What do we now have instead of writs?
Statements of claim
59
Why was the writ system unfair?
Had to squeeze claim into an already existing writ, if you couldn't there was no remedy even where it was obvious that there should be one.
60
What body of law emerged from the unfairness of the writ system?
Equity
61
What is equity?
The court can provide remedies where necessary in the interest of justice
62
What court administered equity?
The Court of Chancery
63
Did equity fall into an already existing body of law?
No, it was its own separate body of law
64
Did equity share the same courts with existing systems?
No, they had seperate courts
65
What was the key idea that emerged from equity and the court of chancery?
Fairness
66
What were the steps for common law being implemented in New Zealand?
1. Signing of the Treaty 6 feb 1840
2. Hobson's proclamations of sovereignty 21 may 1840
3. NZ proclaimed as a colony 3 may 1841
4. Legislative Council established to make laws, constitute courts and appoint judges 16 nov 1840
67
Who made up the legislative council?
A group of appointed pākeha men
68
How did Grant Morris describe the legislative council?
An autocracy
69
Why did we have the legislative council?
Was a kind of holding arrangement until NZ colony can form a full, representative government
70
What were three mechanisms used to establish common law in NZ?
1) Establishment of courts
- 1841 - supreme court (high court)
- 1846 - Majestrates court (district court)
- 1862 - Court of Appeal
2) English legal doctrine
- English common law that says that when British settle a new land the common law goes with it
3) Clarifying legislation
- declared common law as the system of law in NZ
71
Why was the common law considered useful by the judge in R v Symonds?
- Allows for consistency across all colonies
- We need established principles of law to regulate "the intercourse of civilised nations with aberigional populations"
- certainty and consistency within the colony
72
Which Acts clarified the implementation of the common law into New Zealand?
English Laws Act 1858
- all laws apply from Jan 1840
all laws = common law + legislation
73
What did English common law say about Tikanga?
- Pre-existing local customs and laws continue
- Doctrine of Native Title - recognises tikanga around land ownership
74
What laws were applicable in NZ in 19th + early 20th centuries?
Both Tikanga + Common Law
75
What is the doctrine of dominion / radical title?
When the crown takes sovereignty it becomes the ultimate owner of all land
76
What is crown ultimate ownership subject to?
Doctrine of Native Title
77
What does the common law look like in NZ today?
- Still strongly connected to English common law
- But increasingly unique to ANZ and our circumstances
78
What do the weft and warp represent in CJ Dame Helen Winklemanns analogy?
warp = underpinning values
weft = cases
79
What is an example of our legal system moving to be more representative of our modern society?
Supreme court establishment in 2003
80
What does Helen Winklemann say about the process of decision making by judges?
Judges have a knowledge about the law but also their own knowledge and experience of life and society to the values underpinning the law
81
Why do we have courts?
To help resolve disputes
82
What is the role of courts in our society?
Help maintain social order
- enforce criminal law
- resolve disputes
Help constrain government power
83
Can everyone who needs to access the law access it?
No
84
Why is the court hierarchy important?
- Devision of workload
- gives us the ability to appeal cases
85
Why is the ability to appeal cases important?
- Because courts and judges can get things wrong
- sometimes the law is unclear
- the appeal system allows senior courts to double-check what lower courts have decided
- this is especially important when considering rights
86
Why is the court hierarchy important?
- devision of workload
- gives us the ability to appeal cases
87
Why is appealing important?
Because courts and judges can get things wrong
88
How does the doctrine of precedent link to the court hierarchy?
Junior courts have to follow the decisions of the higher courts
89
How long must you hold a practicing certificate to become a judge?
7 years
90
Which cases can particular judges not decide?
Ones in which they, as individuals have a direct interest
91
How are judges appointed?
via an apolitical process (independant)
92
What is an example of a country with major political influence on its judges?
USA
93
Who should judges reflect?
The communities they serve
94
Have judges in NZ historically represented our country?
No, and we still have a way to go
95
Where did the idea of parliament origionate?
Advisers to the king
96
What is the "Wittenagemot"?
Wise men advising the king during the Anglo-Saxon era
97
What is the "Curia regis"?
The kings council, established under William the Conqueror
98
What gave people influence over the king?
Being highborn or rich
99
How was the Wittenagemot organised?
- no fixed meeting times/places, all dependant on when the king summoned them
- No power to decide when to come together
100
Were there distinctions between the judiciary + legislature + executive in the Curia Regis time?
- No
- All dependant on what the king says
101
When was the Magna Carta signed?
1215
102
What is the Magna Carta?
- An agreement between the king and the nobility
- King will summon nobility and make decisions in conjunction i.e. taxes
103
What did the Magna Carta outline?
The king will rule in consultation with others
104
Why did the nobles want the Magna Carta?
The king wanted to raises taxes really high and the nobles were not happy with this
105
Which century does parliament emerge in?
13th
106
When was the first genuinely representative body of both nobles and commoners?
De Montfort's 1264-1265
107
Who did De Montfort loose the support of?
The Barrons
108
Second representative body?
King Edward's model Parliament 1295
109
Which ideas does Edward implement?
De Montfort's
110
What were King Edward III's reforms mid 14th Century?
1. the commoners have to agree with legislation
2. no taxes should be imposed without the consent of parliament
111
What were the power struggles in the 17th century?
- Parliament tires to constrain King Charles I with the petition of rights 1628
- Charles dilsolves parliament 1629
- Charles rules alone for 11 years
- Parliamentarians and the Kings army go to war (1642-1651)
- Parliament appoints its own monarch, William of Orange and his wife Mary 1689
112
Which principles were outlined in the Bill of Rights 1688/89?
1. "Free speech" for members of parliament
2. Parliament must meet frequently
3. "That the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Parliament, is illegal"
113
Whose law is now supreme?
Parliament's
114
What did the General Assembly of 1852 do?
- Established by the NZ constitution Act 1852 (Act of British Parliament)
- An elected body
- reflecting "responsible government"
- with "power to make laws for the peace, order and good government of New Zealand"
- but those laws musn't be "repugnant to the law of England" - British Parliament still had a lot of power over our parliament
115
When did we adopt the Statute of Westminster Act 1931?
- 1947 - Statute of Westminster Adoption Act
116
What did adopting the Statute of Westminster allow us to do?
- become self-governing
- able to amend the NZ constitution Amendment Act 1947
117
What did Parliament do in 1986?
Repeal the NZ Constitution Act 1852 and replaced it with the Constitution Act 1986
118
What does our Parliament do?
- represents the people
- holds the executive to account
- debates Bills and decides whether to pass them into law
119
Why is NZ lawmaking a democratic process?
Done by people who we vote in and represent us
120
Which languages can bills be debated in?
- English
- Māori
- Sign language
121
When can the public share their views?
At select committee
122
Who can refuse parliament's laws?
No one
123
Who can advise parliament that legislation is inconsistent with rights?
The Attorney-General
124
What is the A-Gs role in the situation of parliament being inconsistent with rights?
Inform the public that parliament is considering legislation in breach of our rights
125
What role do the courts have? (if parliament breaches rights)
- the courts can declare legislation as inconsistent with NZBORA
- but they cannot invalidate the legislation
126
Example of parliament breaching rights:
Prisoner voting 2010
- AG advised them it was inconsistent with NZBORA
- Courts declared it as inconsistent with NZBORA
127
What is a special majority
- 75%
128
Do rights have power?
Yes, they are powerful because when enforced they can provide protections
129
How does the government respond to the outcome of the Ngāti Apa Case?
- They amend legislation to give ownership of the foreshore and seabed to the crown
- Put forward as a bill
- Foreshore and Seabed Act 2004
130
What does the Waitangi Tribunal do?
- declare that Government policies are inconsistent with ToW
131
How does Government respond to the recommendations of the Waitangi Tribunal in the Foreshore and Seabed Act?
- refuse the recommendations
- sends this Bill to Parliament anyway
132
Was the Foreshore and Seabed Bill passed or rejected?
Passed
133
What does the Foreshore and Seabed Act tell us about our legal system?
- rights are powerful but parliament is even more powerful
- the government has a lot of power in parliament but it must make sure that it has enough MPs voting in favour of their bills
134
When did the Foreshore and Seabed Act change?
2008
135
Who changed the Foreshore and Seabed Act and what did they change it to?
- National
- Marine and Costal Area Act
136
What does the Marine and Costal Area Act say?
- no one owns the foreshore and seabed
- Māori can apply for recognition of interests in the land
-->waitangi tribunal still found flaws with this process
137
While politics may influence parliamentary law making, what must the judiciary remain?
Independant and impartial -> must be directed by the law and not politics
138
Can parliament constrain the rights of future parliaments?
Yes
139
What do appeals help to maintain?
- Public confidence in the law
140
What is the constitution about?
Public power
- who exercises it
- how they exercise it
141
What does Sir Kenneth Keith describe the role of the constitution as?
A constitution "describes and establishes the major institutions of government, states their prinicipel powers, and regulates the exercise of those powers in a broad way"
142
Where is NZ's constitution found?
- legislation
- prerogative powers
- the treaty of waitangi / te tiriti o waitangi
- Conventions - long established practices
--> Stuart Nash criticisms
143
What are some key features of our constitution? (not just 3)
- Judicial independence
- Parliamentary sovereignty
- Responsible government
- A constitutional monarchy
- An "unwritten" constitution
144
What is the significance of Judicial independence?
It can constrain the power of the other two branches
145
What is the key significance of Parliamentary Sovereignty?
- the laws of parliament are superior to any other laws
- no one can deny enforcing these laws
146
What is the significance of "responsible government" within our constitution?
- The idea that the government of the day is responsible (answerable) to parliament.
-> the government of the day must hold a majority in parliament
-> the government of the day must explain and answer for its policies to parliament
-> It establishes a line of accountability from the people to those who run the country
-> It can make it easier for the government to get get its policies put into law... though this depends on other factors too
147
What is the significance of a constitutional monarchy?
-The sovereign is our head of state
-> part of the legislature
-> the perform certain constitutional functions
-> part of our heritage as a former British colony
-> the monarch's power is extremely constrained in a constitutional monarchy
148
What is an "unwritten" constitution?
- not found in one single document
- no special process for amendment
149
What is the significance of an "unwritten" constitution?
- degree of public awareness - lower
- less protection for things we think are important, or which impose constraints in the exercise of public power
- more flexible and can shift with the times
150
What is an example of a written constitution?
USA + Australia
151
What is one way our constitution may change?
cutting ties with the monarchy + becoming a republic
- could confer power on the courts to decline to apply parliament's laws in certain situations
152
What are the arguments against + in favour of cutting ties with the monarchy?
Argument in favour= protection of rights
Argument against= the democratic nature of lawmaking through parliament vs how laws are made through the courts
