Overview Flashcards
1
Q
What are the 3 branches of power in the NZ legal system
A
- Executive
- Legislature
- Judiciary
2
Q
Executive =
A
The Government
3
Q
Legislature =
A
Parliment
4
Q
Judiciary =
A
The Courts
5
Q
What does the Executive do?
A
Administers laws made by Parliment.
Creates bills to get passed
Runs the country - taxes etc.
6
Q
What does the Legislature do?
A
Makes legislation
Is a democratic body who represents voters.
7
Q
What does the Judiciary do?
A
Interprets and applies the law.
Makes precedent, developing the common law
Scrutinises the executives actions
8
Q
What are the 2 features of Parliament?
A
- Soverigen = in theory, can pass any law that they like as long as they reach a majority
- Supreme = Judiciary and Executive branches cannot overide.
9
Q
What is the Hierarchy of the courts in NZ
A
Tribunal’s and Authorities –> District Court –> High Court –> Court of appeal –> Supreme Court
10
Q
What is Judicial Independence?
A
Decides every case according to law. Must be apoliical and not beholden to other braches
11
Q
Why do we have a hierarchy of courts in NZ?
A
Efficiency and Accessibility
Provides a system of appeal
Helps determine what cases are binding or not
Divides judicial workload
12
Q
Who is in the legislature?
A
Members of Parlilent =
Govenor General
House of Reps
MP’s
13
Q
Who is in the judiciary?
A
Judges
14
Q
Who is in the executive?
A
Ministers
Government Departments
15
Q
How do these branches interact:
Judiciary —to–> Executive
A
In judicial review - the courts scrutinise executive actions
Deals with the people that the executive enforces the legislatures law upon.
16
Q
How do these branches interact:
Judiciary –to–> Legislature
A
Legislation that is made by the executive, if vauge or ambigious, requires judges to interpret it.
17
Q
How do these branches interact:
Executive –to–> Judiciary
A
Executive might, when administering legislation from Parliment, soften or shape it’s impact when arriving to court
18
Q
What are the steps of a bill being enacted into a law?
A
- Introduction
- First reading (first chance to debate the bill, if majority vote yes then it moves on)
- Select Committees (invites public opinion and write a report with feedback)
- Second Reading (debate of the principles and changes suggested by previous stage)
- Committee of Whole House (members have chances to make short speeches and debate, final form of bill agreed)
- 3rd reading (summing up final form, final vote)
- Royal Assent (Govenor General signs)
19
Q
What is Stare Decisis/ The Doctrine of Precedent? + the 2 pillars that hold it up
A
Principle of English law where precedents of similar cases are deemed authoritative and binding and must be followed by other courts, especially lower ones.
2 pillars that hold it up:
1. “Like cases ought to be decided alike”
2. Vertical stare decisis
20
Q
What is precedent?
A
Earlier cases where judges have made legal rules
21
Q
What is stare decisis in relation to the doctrine of precedent?
A
The doctrine of precedent is the overarching system that identifys when legal rules should be followed, while stare decisis is the principle that supports it.
22
Q
What is the MMP system
A
Mixed Member Proportional System
Method used to elect the members of Parliment
Voters have 2 votes: one for a local candidate and one for a political party
The party vote determines the number of seats each party gets in Parliament while the candidate vote determines who gets those MP seats from the party.
23
Q
Why is the MMP system valuable?
A
Leads to fairer representation and often coalition governments.
Limits Parlimentary supremacy as it means that Parliment (and often govt) are made up of multiple different political parties with different idealogical backgrounds - reducing an overpower of one ideaology.
24
Q
“Like cases ought to be decided alike” =
A
Cases with sufficiently similar facts should be decided with the same precedent.
25
Vertical stare decisis =
Lower courts are bound to follow the decisions of courts higher than them in the hierarchy
Highest courts do not have to follow the precedents of lower courts
26
Horizontal Stare Decisis =
The hierarchy within each court
Courts are expected to follow precedents that is has considered within itself/ their own court.
27
What are the values promoted by following precedent?
Certainty
Efficiency
Predictability
Stability
Orderly development of the law
Justice and fairness
Public confidence
28
Ratio decendendi
The reason for the decision
The legal rule that emerges from the case
Binding
29
Obiter Dicta =
Observations made by court when deciding a case
"If the facts were...this....would be different"
Not legally binding
But can be helpful
30
Horizontal Stare Decisis in NZ courts =
Eg; District court --> Persuasive --> District court
31
Whatever the .... court says is the end say
Supreme
32
The persuasiveness of a case is contributed to by...
How long it has been there
How often it has been applied - the more often it is applied, the more persuasive it is
33
The court of appeal and supreme court, as the top courts, take...approaches when...
Take cautious approaches when departing from their own earlier precedent
Only in compelling circumstances
34
What justifies departure from earlier precedent?
Earlier decision is per incuram (court failed to consider a binding authority or relevant statute, bad judgement)
Decision has been overtaken by societal change
Age
Number of judges
35
What is the nature of overseas precedents?
Overseas precedents are NEVER binding on our courts in NZ
But our courts may find them helpful and treat them as persuasive to a decision.
36
How persuasive you treat an overseas case depends on?
How similar the law in that country is to NZ
Is there similar cultural traditions - how similar the societies are
What level of court is it from overseas
How convincing is the reasoning
37
Overseas law most like ours in NZ =
Australia, UK, Canada
38
Judiciary is responsible for making....law
Legislature is responsible for making....
Common law
Legislation
39
The most independant branch is the....
Judiciary
40
Why is judicial independance important?
It is essential in upholding the rule of law - if judges are influenced/ bias it does not mean that the law is for everyone.
41
How is judicial independance maintained?
Have to make an oath
High threshold to meet
Appointed through a fundamentally non-political process
Civil immunity - you can not sue a judge
Salaries cannot be lowered while in office + are set by an independant entity
42
Common law =
Judge made law
43
What is the earliest examples of written law
How did it appear
Purpose
The code of Hammurbi
Code came from God and was sent down to the King who created it through him
Engraved onto a stone pillar and put in place for everyone to see - so they could regulate their behaviour accordingly
Symbolised the kings role in maintaining justice and order
Religious kind of law
44
What is the information around Roman Law (how it came to be, what it was like)
Similarities and differences to the code
Eg; Corpus Juris Civilis
Rome conquered England and their law therefor operated within England for time. It was a written code but came from the people Then Rome eventually withdrew from England and it's laws followed them through other European countries
Both Roman law and Code tried to regulate soceity and promote justice. Roman law was different in being more flexible and comprehensive as well being the 'law of the people' rather than religious law like the code.
45
Who came in to play after the Romans left england? + details
Roman leaving Britan left a power vaccum which the ANGLO SAXONS took.
Their laws were unwritten customs and traditions - focusing heavily on compensation and religion
Those determining the law did not see themselves as making law but rather receiving signs from God
Relied on alternative trial methods and local customs - eg; trial by fire or water.
46
What date for William the Conqueror?
1066 - when he reigned
47
What did William the Conquerer do?
Crowned as the king in 1066
Had full control over England land
Left the Anglo-Saxon law in place - did not bring Roman law over
Contributed highly to the development of common law - he directed the how the courts were to apply the law (he directed them to all apply the law in the same way and operate the same)
48
What is the key date for Henry II
1154
49
What did Henry II do?
Continued to keep William the Conquerer's tradition of strong centralised rule and nationalisation of local customs - continued to keep his approach of consistency in the courts
He also helped to introduce various features we still see in legal systems today;
1. Introduced the writt system - previously you just had to hope the person you were taking to court would show up but the writt system brought the kings power with it.
Writ = how you get someone to court.
2. Introduced a system of trial by jury - systematised it. Reconised the law was of the people not of god
50
What was the problem with Henry II's writ system?
It became too complex
If your issue did not fit into a pre-existing writ there was no remedy for it
Started to seem unfair as there were situations of an obvious wrong but no remedy
51
What was the solution for Henry II's writ issue?
Equity and the Court of Chancery
Adressed the lack of flexibility - provided remedies in the interest of justice when someones problem did not fit into a writ and no remedy was given previosly
52
What did William III do? + what date
What did this do
Signed the Bill of Rights Act
1688
This marked the beggining of Parlimentary supremacy as the rights and power went to Parliment instead of the King
53
How did the common law spread throughout the world?
Through colonisation
English settlers took their law with them - English law doctrine
54
How did common law come to be established in NZ?
1. English Legal Doctrine = England settlers brought their law with them when they settled in the new country
2. 1840 - Treaty signing + Proclamation of soverignty by Hobson - declaring soverignty after treaty signing
3. 1840 - Legislative council established to make courts and appoint judges - beggining of formal legislative function in NZ
4. 1841 - NZ proclaimed as a British colony
5. 1841 - Supreme court - now the high court
6. 1846 - Magistrates court
7. 1858 - English laws act - NZ adopted all english laws
8. 1862 - Court of Appeal
55
Why do we have a court hierarchy?
Provides a system of appeal
- Judges are humans and can make mistakes
- If you think the judge decided your case incorectly, you cannot ignore the decision but you can appeal it higher for possible correction.
Helps to determine what cases are binding - people know what law they are bound by - easy to follow doctrine of precedent, promotes consistency and rule of law.
Allows for division of judicial workload - higher courts hear the more serious cases, appropriately trained people hear the appropriate cases.
Sometimes the law needs to change - allows the senior courts to develop the law to match modern soceity.
56
What is the key origin of Parliament
Originates in advisers to the king who does the legislatures job of making law
Anglo Saxon Witenagemont
Wise men (council of nobles and clergy) advising the king during the Anglo-Saxon era but the king still has the final say
57
What happened after the Anglo Saxon Witenagemont?
+ function
In 1066 the Witengemot became the Curia Regis = King's council
Similar group of advisors as the Witengamont
Was an early advisory council that helped the king rule
58
What happened after the Curia Regis?
1215 Magna Carta
Introduced a new principle
Pivotal document that limited the power of the monarchy and established legal rights for the nobility.
Established that the king and his government are not above the law, they also have to abide by it.
King still had a lot of power but it was evidence of a shift.
59
Why did the King sign the Magna Carta if it meant he had less power?
People would get angry and form a rebellion against a king so the kind agreed to work with them so they don't overthrow him
60
What century did Parliment/ a genuinely representative body emerge
13th century
61
What kick started Parliament emerging
1265 - De Montfort's Parliment
Rather than establishing himself as king, he sought to elect a Parliment
Established Parliment with both nobles and commoners.
Although, he died with this idea as he lost the support of the nobles.
62
What happened after De Montforts Parliment
1295 - King Edward I decided to implement De Montfort's ideas by creating the 'Model Parliment' (because Monfort died)
63
What was Edwards Model Parliment
He implemented Montforts ideas and also added some reforms.
Elected commoners chosen by landowners to be in parliament and nobles.
Both the commoners and nobles were to debate and propose legislation seperately AND both have to agree for the legislation to pass
(monforts idea)
His reforms:
- Gave commders in parliment more power
- Gave parliment more power as a whole (eg; no taxes without parliment thing)
64
Why is King Edwards parliment called the model parliment?
Becasue it became the model for all parliments that followed
65
What did King Edward III agree on (+ what date)
Agreed no taxes will be imposed without the consent of parliment
1340
Perceived that king wants to raise a lot of money hence previously raising taxes - now can't
66
What happened after King Edwards model parliment?
A lot of power struggles ensued between the Monarchy and new Parliment.
Tensions increased as Parliment gained more and more power over things like taxes (money)
Led to conflicts like the English civil law
67
What happened after the power struggles?
Dates, what it was, how it came to be, purpose
1688/1689 Bill of Rights Act
William III became king
Solidified parlimentary supremacy and removed kings lawmaking power
Permanently put Parliment above the monarchy
Introduced principles like;
- Free speech for members of Parliment
- Parliment must meet frequently
68
What happened after the Bill of rights was signed?
Parliment continues for many years until today, having al of the power
There were no more power struggles between Parliment and the Monarchy.
69
How was Parliment introduced into New Zealand?
By a series of acts and other legal instruments
70
How did NZ break away from the English Parliments influence and become independant?
1852 - NZ constitution act
NZ inherited a 3 tier english parliment - General Assembly set up
1947 - Our Parliment adopted the Statute of Westminister Adoption Act
Resulted in NZ being a self governing realm.
1947 - NZ constitution amendment act
We became able to emend the constitution act
1986 - Constitution Act
We repealed the NZ constitution act and replaced it with its own act called the Constitution Act
Gave parliment full power to make laws - no power to england anymore
71
What is the key point in terms of NZ's development in parliment
It took time before NZ was ready to break away from the influence on the English Parliment. BUT, eventually we moved to having a full, autonomous and supreme parliment
It is interesting how it took us a long time to do so though.
72
Why do Supreme and Appeal courts take a cautious approach when departing from their own precedent?
These two courts are the highest and are, usually, more likely to have made the correct decision - it is a lot harder to appeal a case to the court of appeal/ supreme court compared to district or high
They want to ensure legal certainty and stability.
Consistently overiding them would undermine the integrity of the judicial process
Sudden changes in precedent can also have significant consequences for ongoing future cases
73
Obiter v Ratio
Ratio is the usually binding material which, following the principle of stare decisis, lower courts are required to follow from higher courts.
Whereas obiter is never binding on future cases, only being treated as persuasive.
Obiter does not have the same authoritative weight as ratio.
74
How do these branches interact?
Executive --to--> Legislature
Proposes bills to the legislature who has the power to enact them into law.
Ministers in executive are members of parliment - direct connection between branches.
75
How do these branches interact?
Legislature --to--> Judiciary
Makes the laws which the judiciary interprets when vauge or ambigious and has soley bases court decisions on.
The legislature, following judicial decisions, can amend laws in response to suit societies needs.
76
How do these branches interact?
Legislature --to--> Executive
Legislature has the power to turn the executives proposed bills into law.
Scrutinises the executive by asking questions in court and select committees etc
77
Why is the interaction between the 3 branches significant to soceity?
Provides a system of checks and balances, preventing any breach or abuse of power
Enhances accountability amongst the branches as they scrutinise each other
Upholds the rule of law, ensuring the law/ justice serves all and is fair
Preserves democracy and serves us as a society - building public trust and cohesion.
- Transparency and participation
78
Why is the function of the legislature important to us as a society?
They are our voice, being a demotratic body. Because they are soverign and supreme, we put a lot of trust in them to serve us.
Make the laws which keep us safe and fair
Promote accountability and prevent a mis-use of power through scruitinising the executive
79
Why is the function of the executive important to us as a society?
Manages essential public services like education and health that improve our quality of life
Responds to crisis's - can put a bill into urgency for our safety
By proposing new bills, they sculpt our countries future and are constantly looking to meet our evolving needs.
80
Why is the function of the judiciary important to us as a society?
Upholds the rule of law, ensuring the law serves all and we all have access to justice and protection when we are vulnerable
Ensures a safe, fair society through serving justice
81
Today, we describe England and ourselves as having a...
Westminister Democracy
Because we have a cerimonial head of state, a prime minister, a cabinet of responsible ministers, and a democratic elected legislature.
82
NZ's legal system has.....
(similarities)
English foundations:
- Institutions are the same (both have legislative body that enacts laws, court hierarchy)
- Many of the methods are the same (lawmaking by elected legislature, trial by jury, precedent based decision making rather than reliance on code)
83
Differences between NZ and England legal system today
Some aspects of our legal system are simplier - we do not have a deperate court of equity like them
We have a unicamerical legislature (House of reps) while they have a bicameral legislature (House of commons & house of lords - 2)
We have more flexibility in legal profession - no distinction between barrister and solicitor
Both have independant judiciaries but NZ's make sense for context - drawing on tikanga/ the treaty
Unique legislation like ACC - reduced tort law in NZ
84
How does NZ Parliment differ with Anglo-Saxon Witanegemot
They were all dependant on the king
STRUCTURE
NZ = unicameral body with only one house (House of reps) - all elected by the public through a proportional representation system
Witangemot = not a formal legislative body, just those selected by the king based on status.
FUNCTION
NZ = primary function of making legislation and representing voters
Witangemont = primary function of advising the king, who then made the laws - they did not have authority like us .
REPRESENTATION
NZ = represents the diverse population of NZ, with Parliment being diverse and having various political parties and perspectives
Witanegemot = did not represent general population or different social classes, only made up of the top nobles and clergy
DECISION MAKING PROCESS
NZ = goes through formal voting process, debates and discussions before a bill --> law
Witanegemot = lacked a formalised voting system, king authority.
85
Why are the NZ vs Witanegemont differences significant?
Highlighys how NZ's legal and political systems promote democracy and public participation, upholding the rule and law and having a cohesive, fair and just society.
86
How does NZ Parliment differ from De Montfort/ Model Parliment?
STRUCTURE
NZ = unicamerial
Monfort = bicamerial (commons and nobles)
REPRESENTATION
NZ = divserse, voted in
Montfort = did introduce the idea of elected represenatives but it is limited and not as inclusive
VOTING
NZ = all eligable citizens - widespread democracy
Montfort = voting limited to certain classes of men (mainly property owners) which reduced democracy a lot
FUNCTION
NZ = making law
Montfort = advise king, less power to make law
DECISION MAKING
NZ = voting majority
Montfort = kings direction, less formalised procedures.
87
What to add when talking about Parliment's function (other than obvious) - in a dicuss Q
Agreement/ disagreement on the supremacy
It is a double edged sword, good for things but also risky.
While I believe there are many risks to having a high power (eg; final say, closest they have is declaration of inconsistency), I beleive that these risks are not absolute and the benefits of having one branch with the most power outweighs the risks.
- Reduces power struggles
- Enhances accountability
- Efficient decision making
- Checks and balances, stops abuse of power
88
What things limit parlimentary supremacy (potentialy)
Regular 3 year elections - we vote them in
Declaration of inconsistency - although it is not binding and they can just chose to ignore.
Current parliment can restrain future parliment by making laws that only can be amended by a super majority (75%)
MMP system - parliment is made up of different political parties with different idealogical backgrounds.
Parliment is still subject to the rule of law
89
"Law" can be described as
A substantive set of rules
A form of social contract
Collection of legal rules you have to obey because they come from a particular source
System of rules
90
How many Mp's in parliment
120 - all elected in
91
Quote for judicial independance
"Judicial independance is essnetial if the judicary is to fufill its constitutional roles of checking the exersise of public power and upholding the rule of law" - Wiknkelmann CJ
92
Why is lawmaking today such a democratic process?
The creation and scrutiniy of bills is done by people the public have voted to be their representatives
MPs can debate in english, sign language and te-reo (making them more accessable)
Multiple debates occur - enabling close scrutiny
Anyome can make written or oral submissions to select committees to get their views heard.
93
Case eg of Parlimentary supremacy
Taylor v Attorney General
Courts could only suggest an inconsistency with rights but Parliment can just ignore.
94
Imperative presumptions + who has to have them
Assume that Parliment is not wanting to breach any rights.
Courts have to assume this
95
Why is Parliamentary supremacy important?
Elected representatives have the final say on laws which reflects the will of the people who voted them in (us)
Can quickly adapt laws to deal with issues or changes - they have the final say
Laws are made by the people who are subject to removal in an election - accountability.
Clear seperation of roles - no power struggles or conflicts
96
Why is the NZBORA needed?
Protects us, our rights and our freedom
Safegaurds soceital values
Restricts the influence government can have on our lives
Guides lawmakers and officials towards respecting rights when involving the law
Judicial oversight
97
Example case where the Hansen Test could have been done different
Midwives case - the outcome would have been different if they used a 6,5,4 preference.
98
Civil justice system
Resolves disputes between individuals, organisations or the government which DO NOT involve the state/ a criminal offence/ charge.
99
Criminal justice system
Deals with the people/ groups who commit offences against the state.
The breaking of the law
100
Distinction between civil and criminal law
Criminal focuses on punishing wrong doing while the civil focuses on resolving disputes and providing remedy
101
Key date for William the Conquerer
1066
102
Key date for Curia Regis
1066
103
Key date for Henry II
1154
104
Key date for Magna Carta
1215
105
Key date for Montfort
1265
106
Key date for Edward III
1340
107
Key date for BORA signed
1688/89
108
Arguments on why or why not judicial diversity might be important:
Yes:
Representation - our society is diverse so our judges should be. Different perspectives and experiences should be considered in legal discussions
Fairness - reduces bias
Public trust - people feel more represented and heard
Better decision making - more accurate decisions, more scrutinisation and informed decisions
No:
Meritocracy - focus should be on qualitications and ability not demographics, we should not pick judges on their background but by their ability
Experience over diversity - don't want the quality of judgements to be impacted by personal experience
Judicial independence - should focus on the law anyway so diversity should't be shining through.
109
Arguments for why we should strive for fair or certain law:
+ What to strive for
Fair
- Equity - just outcomes
- Access to justice - all individuals have resources
- Moral considerations - ensure outcomes align with sense of right and wrong
Bad: could lead to unjust outcomes.
Certain
- Predictable - know what to expect which allows them to regulate their actions well
- Stable - consistent rules and outcomes
- Rule of law - prevents arbitary decisions
Bad: can make things unpredictable and people confused.
IDEALLY SHOULD STRIVE FOR A BALANCE.
110
Delegated legislation
Where Parliment delegates their power and gives the Government power to make laws
111
What case can be used as an example for why it is important for an appeal system, parlimentary supremacy and why govt needs MP's on their side
+ give details
The Ngati Apa case which triggered the Foreshore and Seabed Debate
1840 - TOW signed
Maori property rights to dry lands are extinguished through legislation over the years
2004 - Ngati Apa iwi wins in the Maori Land Court which said that they might still have claims on the land and it had the jurisdiction to be able to hear and determine claims of Maori ownership of the foreshore and seabed
Government appeals this up to the high court and wins - because they aligned with the Nintey Mile Beach case
Ngati Apa appeals this up to the court of appeal and wins - COA said that property rights endure unless they are extinguished explicitly by legislation - there was not a clear law doing this
Also finally ruled that the Wi Parata decision was bad law - saying the crown did not gain imperium when they gained dominion.
Labor party government immediately responds to this by enacting the Foreshore and Seabed act 2004 - trying to have clear legislation that removes Maori land courts jurisdiction to hear claims about foreshore and seabed land
Huge political upheaval - protests etc.
2011 - National/Maori party coalition government gets into power and passes the Marine and Coastal Area Act 2011 to repeal the foreshore one - says that NOBODY owns the foreshore and seabed but it allowed for Maori to pursue claims to get customary title (better than nothing for the Maori as there is now a POSSIBILITY).
112
How does the Ngati Apa case show an example of Parlimentary Supremacy?
The court of appeal made a decision in favour of Ngati Apa so Parliment exersised its supreme power by passing the Foreshore and Seabed act, essentially overiding the Ngati Apa case/ decision and preventing Maori from getting customary land title.
Parliment can do what it wants, having the final say and can overule the other branches whenever.
113
How does Ngati Apa show the importance of a system of appeal?
It allowed for a wrong decision of the past to be corrected for the benefit of future.
Ensuring just development of the common law and precedent for overall better outcomes.
Fixing mistakes
114
How does the Ngati Apa decision show why it is important for Parliment to have MP's on its side?
The support from MP's allowed Parliment to efficiently enact the Foreshore and Seabed act - it would have been much more dificuilt if they werent on Parliments side.
MP support is crucial in shaping laws and exersising parlimentary supremacy
115
How does the Ngati Apa decision show how the branches work together?
The judiciary interprets the law and can correct previous decisions, the Legislature creates laws in response to the judiciary's decisions, and the Executive enforces the laws made.
116
Definition of the Doctrine of Precedent
The doctrine of precedent (sometimes called stare decisis) is the principle that like cases should or ought to be decided alike
117
Definition of vertical stare decisis
Lower courts are BOUND by the decision of a higher court, on a case with sufficiently similar facts.
One of the main reasons we have a court hierarchy
118
Definition of horizontal stare decisis
Judges are NOT bound to follow the previous decisions of courts at the same level
BUT
The previous decisions are highly persuasive.
119
Why do the supreme and appeal courts take a cautious approach when departing from their own earlier precedent, even though it is not binding?
Adherance to past decisions promotes certainty and stability of the law
If they constantly change their earlier decisions people will;
- Take their case to the court in hopes of another change
- Public loose respect for the law
They have the best resources and skills to decide cases - unlikely they would have been wrong
120
What is the nature of precedent from the privy council on other courts?
Pre 2004 it was our highest judicial body. All judgements it made were binding on all NZ courts
But then we established the supreme court to take its place in the hierarchy of courts.
This meant that any decisions of the Privy Council remained as the binding precedent to all courts lower than the supreme
Treat them as if they were judgements of the supreme court.
121
What is the nature of the precedent from the Privy council on the supreme court who replaced it?
Not bound
Because technically on the same level - persuasive.
BUT this does not mean it should depart.
122
How does the Doctrine of precedent relate to the hierarchy of courts?
It operates on the principle/ pillar of vertical stare decisis = that lower courts are bound by the decisions of higher courts within the same jurisdiction
123
How to manage judicial disagreement?
The meta-rule = the decision of a majority of judges forms the decision of the court.
124
What can a judge from a lower court do if they do not want to apply the rule adopted by the higher court?
1. Define the ratio in a narrow way to exclude the present case.
2. Distinguish the present case from the precedent based on the facts to make it not a "like" case - the doctrine does not need to be applied.
The difference must be a MATERIAL FACT though
125
How is the legislature checked and balanced?
By us + media: we hold them accountable through elections, opinions, and loosing support.
By Exec: PM can veto the legislation which means they refuse to sign - but Parliment can overide it but typically requires a larger majority.
By Judiciary: Judicial review - can declare laws invalid or unenforceable.
126
How is the executive checked and balanced?
By Leg: SC, Questions in parliment
By Judiciary: Judicial review
By us: We can hold them accountable through voting out leaders etc.
127
How is the judiciary checked and balanced?
By Leg: they make or amend laws they have to follow. Bound by statutes and precedent - have to decide cases according to law (judicial independance)
Also bound by the doctrine of precedent/ stare decisis.
By Exec: Can appoint judges which influences the makeup of the judiciary
By us: There is public trust in the court.
128
What is the common law and why does NZ have it?
Legal system where law is developed by judges through decisions in individual cases rather than statutes or written things.
Reliance on precedent rather than code
NZ has it because we were a former British colony - then timeline.
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Roles of the 5 courts
Supreme:
Hear appeals on important legal issues that arise from lower courts. Highest court, has the final say and most binding.
Only hears appeals from the court of appeal - only if of importance.
Appeal:
Review decisions made by high court and sometimes district court.
Handles civil and criminal appeals
Hard to get up to supreme so usually the final appellate court
High:
Hears the most serious and complex cases
Deals with cases as well as judicial reviews
District:
Limited jurisdiction - deals with less serious criminal and civil cases - like theft and d/v
No binding precedents
Other - tribunals etc:
Specialist courts like family, youth, Maori land court (focuses on issues related to Maori land, eg; ownership etc).
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Why is Ratio and Obiter essential to case analysis?
Ratio important becasue:
It is often binding
Helps to clearly show legal reasoning
Ensures stability - provides the core legal value to follow.
Obiter important because:
Persuavie
Broaden understanding
Overall:
Clarrifys what is binding precedent and what is just persuasive.
Leads to better judgements and reliance on precedent not just code.
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Why do the District and High courts take a less cautious approach when departing from earlier precedent when the appeal and high court take cuatious ones?
Lower position in hierarchy = decisions subject to review and appeal by higher courts. They are far less likely to depart as they are much more contstrained.
They don't shape the law as much as supreme or appeal do - they just apply it.
They do not set binding precedents like the supreme and appeal
Higher ones have more freedom to depart - although are cautious in doing so, while the lower 2 have a sole focus of applying the law consistently.
