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27846v2a Learners Guide
27846v2a Learners Guide
Learner’s Guide
LEGAL STUDIES
Licensed to:
Western Heights High School
2019 - 2a © ATC New Zealand
www.instant.org.nz
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About this
Learner’s Guide
Learning Purpose & Outcomes
In this guide, you will learn how to evaluate litigation and dispute resolution processes in relation
to challenging the power of the state. The following dispute resolution processes will be evaluated.
• The Waitangi Tribunal
• Judicial review
• The office of the Ombudsman
For each process you will learn:
• the reasons why the litigation or dispute resolution can be used
• the strengths and weaknesses of each method
In addition, you also have the option of completing one research task. In this research task, you
will have the opportunity to investigate one litigation/dispute resolution process of your choice.
A glossary containing difficult or technical terms has been included at the end of this guide. Words
are highlighted the first time they appear in the main text.
Contents
Waitangi Tribunal 2
What is the Waitangi Tribunal? 3
The Wai 11 Te Reo Māori claim 5
The strengths and weaknesses of the Waitangi Tribunal 9
Developing your own opinion 12
Judicial review 14
What is judicial review? 15
Smoking in prisons 18
Strengths and weaknesses of judicial review 21
Developing your own opinion 24
Glossary 44
LESSON 1:
Waitangi Tribunal
Learning Objectives
In this lesson, you will learn how the Waitangi Tribunal can be used A space has been left
on the right of every
to challenge state power. In particular, you will learn about:
page for you to make
what the Waitangi Tribunal is notes about what you
are learning.
the Wai 11 Te Reo Māori claim
strength and weaknesses of using the Waitangi Tribunal
developing your own opinion.
1.
2.
3.
4.
5.
STRENGTH
How the Tribunal is an effective
tool in challenging state power
WEAKNESS
How the Tribunal is limited in
challenging state power
Other situations
Not all cases investigated by the Waitangi Tribunal have successfully challenged state power.
There have been other instances where the recommendations of the Tribunal have been
ignored by the government, such as recommendations made by the Tribunal in relation to
asset sales/water rights. Even before the Waitangi Tribunal released its report in relation to
asset sales, Prime Minister John Key stated that, ‘The legal position is that governments
aren’t bound by the Waitangi Tribunal… It’s our view that no-one owns water, just in the
same way we don’t think that anyone owns the sea’.1 This effectively meant that although the
Waitangi Tribunal went to considerable expense and time to investigate water-rights claims,
the government would not change their position on the matter.
1 http://www.3news.co.nz/politics/government-can-ignore-waitangi-tribunal-on-asset-
sales-2012071010
Your opinion
When you form your opinion about the Waitangi Tribunal, you
should consider:
1. The usefulness of the process.
• Can anyone use the process or is it only available to
certain groups?
• How likely is a change in law if the process is followed?
2. The steps that it takes to challenge state power.
• Is the investigation period long and drawn out?
• Is the process used fair and does it investigate accurately?
3. The strengths and weaknesses.
• Do the strengths outweigh the weaknesses? How?
When you give your position, it is important that you ‘back it up’ by
summarising your answers to the questions in the box above.
Example:
For example, if you believe that the Waitangi Tribunal is not a useful
process for challenging state power, you may write the following as
part of a statement of your position:
Although the Waitangi Tribunal was successful in challenging
state power in the Wai 11 Te Reo Māori case, I do not
believe that it is generally a useful process to challenge state
power. Firstly, it is only able to make recommendations to
the government, it cannot actually force a change in law.
Even if the Waitangi Tribunal has a number of compelling
reasons for a change in the law, if these reasons do not suit
the will of the government in power, they are likely to be
ignored. I only think the Wai 11 claim was supported by the
government because it supported their political goals.
LESSON 2:
Judicial review
Learning Objectives
In this lesson, you will learn about judicial review as a process that
can be used to challenge state power. In particular, you will learn
about:
what judicial review is
the smoking ban in prisons
strength and weaknesses of using judicial review
developing your own opinion.
Smoking in prisons
STRENGTH
How judicial review is an effective
tool in challenging state power
WEAKNESS
How judicial review is limited in
challenging state power
Other situations
Not all cases of judicial review result in the government changing the law to bypass the
decision made by the High Court judge. In many cases, the decisions made by the High Court
have been upheld and followed through by the government.
For example, in 2013 a high school student was expelled from his school due to behavioural
issues. His parents sought judicial review on this decision. The High Court ruled that the
student was legally entitled to be at the school and that the expulsion was unlawful. The
school was therefore compelled to find a way to accommodate the student.
Note: A school’s board is considered to be a government organisation and is therefore subject
to judicial review.
Your opinion
When you form your opinion about judicial review, you should
consider:
1. The usefulness of the process.
• Can the judicial review process be used for any issues
that arise, or is it just for certain issues?
• How likely is a change in government action if the judicial
review process is followed?
2. The steps in the process that are followed to challenge state power.
• Is the process easy for the public to access?
• Are the steps in the process long and drawn out?
3. The strengths and weaknesses.
• Do the strengths outweigh the weaknesses? How?
When you give your position it is important that you ‘back it up’ by
summarising your answers to the questions in the box above.
Example:
If you believe that judicial review is a useful process for challenging
state power, you may write the following as part of a statement of
your position:
I think judicial review is an effective tool in challenging
state power, provided that the government follows correct
procedures to deal with any judgements made by the courts.
One key strength of judicial review is that it can force the
government to stop those actions that they were taking. The
government is then given a chance to create new law so that
their actions are legal.
You are required to prepare for a class debate. The topic is:
Try it for • Is judicial review an effective tool to challenge state
Yourself power in New Zealand?
Follow the instructions from your teacher about how to
prepare for the debate. If you do not have a teacher or a
class to complete the debate with, choose one position
and write some notes to argue your position.
LESSON 3:
Complaints to the
Ombudsman
Learning Objectives
In this lesson, you will learn about complaints to the ombudsman as
a process that can be used to challenge state power. In particular,
you will learn about:
what the office of the Ombudsman is
complaints to the Ombudsman in relation to immigration
approvals
strengths and weaknesses of complaining to the Ombudsman
developing your own opinion.
STRENGTH
How complaining to the
Ombudsman is an effective
tool in challenging state power
WEAKNESS
How complaining to the
Ombudsman is limited in
challenging state power
Your opinion
It is important that you look at other cases so that you can form
an opinion about whether the Ombudsman is an effective tool in
challenging state power.
http://www.ombudsman.parliament.nz/resources-and-publications/latest-reports
STEP 2: Write some brief notes for at least two reports. Remember to include:
• what the complaint was about
• the Ombudsman recommendations
• the government’s response to the recommendations (you may need to do
some additional research to find information about this).
Case 1
Case 2
STEP 3: With reference to all the information you have about the Ombudsman, do
you think it is an effective tool to challenge state power? Include specific examples
from the immigration case studied as well as any other cases that you investigated.
LESSON 4:
Optional research
project
Learning Objectives
In this lesson, you will research one litigation/dispute resolution
process. In particular, you will research:
what the process is and how it works
a real situation where the process was used
strengths and weaknesses of using the process
your own opinion in relation to the process.
There are a number of litigation and/or dispute resolution processes
in addition to the ones that you have already studied. These include
the following.
habeas
an international corpus
law process
complaints to
complaints the Independent
to the Human Police Conduct
Rights Authority
complaints to
Commission the Privacy
Commission
WHAT In this section, explain what the process is. Give some general information about it
as well as some specific information that you think is relevant.
What is it?
WHEN In this section, explain when the process originated. Is it a new process that has
been developed by the government? Or is it a process that was established in
common law?
When did the
litigation/
dispute
resolution
process
start?
WHY In this section, explain why the process exists. What are the aims of the process?
How is it a useful way to challenge state power?
Why use
the process
to make a
complaint?
WHO In this section, explain who is involved in the process and what their roles are.
Who is
involved?
HOW In this section, explain the steps that are taken in the process. Also, describe
the different outcomes of the process.
LAW In this section, identify the laws that regulate the litigation/dispute resolution
process.
Legislation
that
regulates the
litigation/
dispute
resolution
process.
Case study
In this section, you are going to find a real situation where the litigation/
dispute resolution process was applied. You can find situations
through research on the internet.
Note: If you are having trouble finding a suitable situation, ask your
teacher to help you.
The situation
STEP 2 What did the organisation do with the case? How did they investigate it?
What conclusions did they come to?
The investigation
STEP 3 How did the government respond to the decision? What actions did they take?
Did the litigation/dispute resolution process effectively restrain state power?
Government
response
STRENGTH
How the litigation/dispute
resolution process is an effective
tool in challenging state power
A general strength of the litigation/dispute resolution process.
WEAKNESS
How the litigation/dispute
resolution process is limited
in challenging state power
A general weakness of the litigation/dispute resolution process.
Your opinion
When you give your position it is important that you ‘back it up’ by
summarising your answers to the questions in the box above.
Glossary
adversarial A court process in which the parties in a dispute have the responsibility
for finding and presenting evidence.
binding order A decision by an authority that must be followed.
bona fide Real or genuine.
bypass To go past or ignore something.
claimants A person or organisation who has a grievance.
compel To force or oblige (someone) to do something.
compliant Following set rules or laws.
discretionary The freedom to decide what should be done in a particular situation.
grievances A complaint.
inquisitorial A court or tribunal process where the decision maker is actively involved
in investigating facts.
interim orders An order passed by a court while waiting on the outcome of another
decision.
overrule To reject the decision or opinion of another.
permanent A permanent organisation that investigates grievances.
commission of
inquiry
prejudicial Something that is harmful or detrimental to a person or thing.
protocol An agreed upon method or way of doing something.
retrospective Looking back on or dealing with past events or situations.
taonga An object or natural resource which is highly prized. (Te Reo Māori)
tikanga Māori law, customs, way of doing things. (Te Reo Māori)
whakapapa Genealogy. (Te Reo Māori)
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